Winston Churchill said that, “Democracy is the worst form of government except all those other forms that have been tried from time to time.”  That famous quip neatly describes keyword search in e-discovery.  It stinks, yet lawyers turn to keyword search again and again, because it seems like the best option out there.  It’s the devil we know.

Though keywords serve us well when searching the web, they perform poorly finding “all documents touching, concerning or relating to” an issue in litigation.   The failure is particularly pronounced when keyword search is pursued in the usual fashion of opponents horse trading terms without testing them against sample data or adapting the list to ameliorate well-known flaws like misspellings, noise words and synonyms.

But that’s old news.  Students of e-discovery know that keyword search is the worst form of search, and harbor no illusions that it’s better than the others that have been tried from time to time.  Whether you call it advanced data analytics, predictive coding, concept search or whatever else leaps from the lips of marketing mavens, there exist techniques that, when implemented with care and judgment, do a better, less costly job than keyword search and linear review.

But whenever these techniques come up in conversations or articles, lawyers seem like kids inching toward the cookie jar, intently watching Mom’s face to see if it’s okay to snag some Mallomars.  It may be better and cheaper, but nobody wants to give enhanced automated search much of a go until “it’s okay with Mom.”

What are we waiting for?

The answer seems to be some sort of authoritative court blessing of alternatives to keyword search.  We’ve seen favorable mention of such techniques in footnotes to decisions from the most influential judges writing on e-discovery issues, but nothing opining that use of enhanced search is “court approved.”

Again, what are we waiting for?

It’s not as though we held off using keyword search until a judge gave it the nod.  We just did it.  And, though keyword search never really got a judicial stamp of approval, neither was it summarily rejected.  Again, we just did it, and in time it emerged as a standard.

Perhaps there will one day be a decision where a judge expressly cites enhanced search techniques as reliable proxies for human review or preferred alternatives to keyword search.  I wouldn’t hold my breath waiting for it.  The American justice system doesn’t favor advisory opinions.  Courts expect genuine cases and controversies to drive our jurisprudence.  New search techniques need to be used before they can be meaningfully addressed in reported decisions.

So, quit worrying about Mom and grab those Mallomars!  If you believe enhanced automated search is better and cheaper, have the courage and wisdom to lead the way in its use.

I’ve been thinking about this for some time, but I’d be remiss if I didn’t credit my favorite e-discovery blog author, Chris Dale, for prompting this post through thoughts shared in his own note about ILTA 2011.  Thanks, Chris!

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