Finding critical facts lies at the heart of any litigation or investigation, but the search for key information can feel like running a gauntlet amidst ever-changing priorities and an avalanche of data. If you decide to go beyond DIY, vetting solution providers may seem just as daunting. These five questions will help confidently assess solution providers.
What is the best approach to finding those “hot” documents that support the narrative and can make or break a case? Keyword-based searches, analytics tools, and code-based searches work well for smaller matters. However, each has its drawbacks when large data volumes or topic complexities come into play.
Search expertise as a service can free your team to focus on case strategy instead of finding what you need. If you decide to go that route, it’s important to understand the process and know what you’re getting.
Read on this article to aid your decision and make the best assessment of service providers. You’ll get:
- 5 questions to ask to get the answers you need
- Expert tips to aid each area of your assessments
- Insights to help you make a confident decision
What is the best approach to finding key documents for a litigation or investigation— those “hot” documents that support the narrative and can make or break a case? The answer is: it depends.
In most cases, it falls to the case team to find hot documents by either brainstorming the issues to develop keyword-based searches, incorporating an analytics tool, or by relying on coding decisions document reviewers have made. Any of these methods may work well enough, especially for smaller matters, but they are less effective when large data volumes or topic complexities come into play. Ad-hoc keyword searches developed by non-experts can easily miss critical documents. Review coding may lack the conceptual granularity and contextual specificity required to identify the most important information. And neither approach can deliver actionable results quickly enough.
Table of Contents
- Finding Key Documents: DIY or Engage a Service Provider?
- What is your approach to locating key documents?
- What is your experience and performance on fact-finding projects?
- What search tools and data infrastructure are you bringing to the table?
- Who are the people we will be working with?
- How can we trust that our own or our clients’ data will be safe with you?
- Making the Decision
Finding Key Documents: DIY or Engage a Service Provider?
Many legal service providers say they can help you find the hot documents for your matter. Some provide you with tools to do it yourself while others offer expert search services, usually coupled with technology. Search expertise as a service requires a different workflow entirely, so if you decide to go that route, it’s important to understand the process and know what you’re getting. Here’s what you need to ask to make the best assessment.
What is your approach to locating key documents?
Identify technology used: Unlike a typical production discovery request, searching for key facts in large data sets requires a technical ability to identify nuanced—and often indirect—textual cues. Ask them for details regarding the software tools they use to enable this specialized type of work, including whether these tools have been developed internally or acquired, and why they think the capabilities of these tools are particularly well-suited to the task of finding key documents.
Clarify expertise set: Ask about the types of expertise they leverage on their side to ensure that the factual issues at hand are comprehensively examined in their work. Are there software engineers, data scientists, linguists or other types of search experts in-house? Since language is at the heart of search, linguistic expertise is critical in developing the most successful search terms, so ensure that they have linguists as part of the team. Also, do they use attorney document reviewers to conduct fact-finding, or do they depend on other types of review resources?
Assess workflow and project management style: Prompt them to explain their project management and client engagement methodology. You want to get a sense of how well structured their team organization is. How does the provider bring together their expertise and technology for a seamless workflow? One is of little value without the other. At what point in the process can they begin to provide key documents? How quickly can the team adjust to added data, new custodians, new topics or other changes? Will they need to re-review the document set? You also want a clear description of how they will deliver their work product and how they will elicit your feedback and direction on an ongoing basis – what is the process?
Expert Tip: No one says “let’s commit some fraud today” in their emails, yet “fraud” often appears on a list of brainstormed keywords. That’s why linguists with expertise in how people communicate—knowledgeable about the subject matter of the case—can take your search term development to the next level.
What is your experience and performance on fact-finding projects?
Dig into their past: It is important to dig into any provider’s experience, including what specific types of matters they have worked on, what services they provided to the customer, and what deliverables they were responsible for. Do they have subject matter experience that relates to your matter? The more, the better. Press them on what has gone well in their experience, what has gone wrong, and how they have adjusted their approach along the way.
Ask for specifics: Solicit specific details about past projects to gauge their ability to scale up their efforts on large data sets and complex subject matter. Ask for details on the processes and technologies they leverage, how they staff their projects, and how they measure and ensure successful outcomes. Use that information to separate facts from bluster. Also, given the impact of COVID-19, have them explain how they address service levels in light of social distancing measures.
Get client references: Request client references to validate the picture each provider presents of themselves. Ask for references related to practices areas you care about. You want a knowledgeable team with experience in tackling not just the data side, but the legal and factual issues that are likely to be in play for your matter. Determine clients’ levels of satisfaction and see if the information you get comports with the provider’s claims.
Expert Tip: A good way to assess an expert search provider is to understand how their expertise has played out in previous engagements. They should be able to share some “wins” that made a difference.
What search tools and data infrastructure are you bringing to the table?
Evaluate their search and analytics capability: Ask the provider specifics about the type of search analytics they use to support fact-finding to deliver results. For example, do they leverage email threading techniques or provide email thread visualization to help focus attention across the most important aspects of email communications? Do they use name normalization to capture how key players are variously referred to across documents and communications? How do they handle searching for complex topics that aren’t captured by a standard set of keywords?
Assess data agility: You want a partner that will be able to quickly process and integrate new incoming data into their workflow on an ongoing basis. Accordingly, have them explain how they handle the management of incoming new data, and how they ensure comprehensive, efficient searching and evaluation of the new data that has come in. Also inquire on lead time for ramping up on a new project, and logistics for ramping down.
Who are the people we will be working with?
Meet the team: Ask to meet the team that will be hands-on. Get a sense of their backgrounds and relevant experience. Does one team stay with the project through the end or are there rotating members? Is there high employee turnover? Try to develop a sense of how they get a handle on case subject matter and allegation specifics, how they structure their work, and who will lead them. Know whom you will be speaking with and how often as the project evolves.
Know the value add: Ask them to provide examples of specific legal hypotheses or patterns they have been asked to find evidence to support and how successful they were in exploring these issues. Prompt them to provide scenarios they have encountered where they have had to adjust their standard process to meet specific project objectives, budgets, and/or risk tolerances. Have them provide examples where they unearthed facts that changed the way lead attorneys were thinking about the case narrative or legal strategy.
Expert Tip: Any solution provider is only as good as the people they employ. Meet the team that will handle your matter and learn about their background, skills, and experience.
How can we trust that our own or our clients’ data will be safe with you?
Ask about security protocols: Inquire about the current set of security protocols that are in place and if they have ever experienced a breach. Have them provide details on how they are poised to continue security operations via remote work and whether they have made any accommodation to increased threats due to COVID-19 social distancing measures. Test their knowledge on data privacy regulations: Depending on the industry and types of data involved with your litigation or investigation, an ability to adhere to a variety of new data privacy regulations, such as the EU General Data Protection Regulation (GDPR), California Consumer Privacy Act (CCPA), and Biometric Information Privacy Act (BIPA), is key. Ask the provider what their experience is with these regulations and what their current capabilities are for accurately identifying personal information (e.g., names, contact information, social security numbers) within electronic data.
Making the Decision
After taking in all of the above, ask yourself to what extent you think the provider will be attentive to your particular concerns and responsive to your specific needs. Effective coordination in search efforts requires high levels of trust and communication that are not always easy to come by, and a thorough vetting of potential partners is warranted. A trusted partner that can help you find the most salient facts for your matter will allow you and your team to do what you do best: focus on the substance of the issues under investigation and the strategy to pursue your case—not on the methods for finding what you need.