In Da Silva Moore v. Publicis Groupe, U.S. Magistrate Judge Andrew Peck’s opinion condoning the use of predictive coding was anything but a blanket endorsement of technology-assisted review (TAR). Instead, Peck emphasized that counsel “design an appropriate process, including the use of available technology, with appropriate quality control testing, to review and produce ESI.” While an “appropriate process” might leverage TAR, other tried and true technologies, such as concept searching, topic grouping and email threading, remain critical complementary tools for designing an effective protocol to filter, process and review relevant data.
Case law: Process is key to defensibility
Strategically building a keyword list is also extremely beneficial. Counsel should run broad searches to cull the document universe and identify similar documents that might provide additional keywords. Additionally, when crafting keyword lists, account for commonly misspelled terms, word/phrase permutations and over-inclusive “noise” words with the help of a data dictionary. Finally, save all searches in a simple text editor to document the search process.
Advanced searching technologies