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By Ralph Losey
In some cases keyword collections may be as risky as in the complex Biomet case, but may still be necessary because of the proportionality constraints of the case. The law does not require unreasonably excessive search and review, and what is reasonable in a particular case depends on the facts of the case, including its value. See my many writings on proportionality, including my law review article Predictive Coding and Proportionality: A Marriage Made In Heaven, 26 Regent U. Law Review 1 (2013-2014). Sometimes you have to try for rough justice with the facts that you can afford to find given the budgetary constraints of the case.
The danger of missing evidence is magnified when the keywords are selected on the basis of educated guesses or just limited research. This technique, if you can call it that, is, sadly, still the dominant method used by lawyers today to come up with keywords. I have long thought it is equivalent to a child’s game of Go Fish. If keywords are dreamed up like that, as mere educated guesses, then keyword filtering is a high-risk method of culling out irrelevant data. There is a significant danger that it will exclude many important documents that do not happen to contain the selected keywords. No matter how good your predictive coding may be after that, you will never find these key documents.
Read the complete article at: I’d Tell You My Keywords, But Then I’d Just Have to Cull You
