Thinking Outside the Boolean Box: Metastrategies for Conducting Legally Defensible Searches in an Expanding ESI Universe ICAIL 2007, Palo Alto, California Supporting Search and Sensemaking for Electronically Stored Information in Discovery Proceedings (“DESI Workshop”) June 4, 2007 Jason R. Baron Director of Litigation National Archives and Records Administration

Definition of “ESI” - A new legal term of art: “electronically stored information” to supplement the older term “documents”: - The wide variety of computer systems currently in use, and the rapidity of technological change,counsel against a limiting or precise definition of ESI…A common example [is] … The rule … [is intended] to encompass future developments in computer technology. --Advisory Committee Notes to Rule 34(a), 2006 Amendments to the Federal Rules of Civil Procedure

National Archives and Records Administration3 Information Inflation: The Expanding ESI Universe....

Snapshot of 2007 ESI Heterogeneity , integrated with voice mail & VOIP, word processing (including not in English), spreadsheets, dynamic databases, instant messaging, Web pages including intraweb sites, Blogs, wikis, and RSS feeds, backup tapes, hard drives, removable media, flash drives, new storage devices, remote PDAs, and audit logs and metadata of all types.

The Myth of Search & Retrieval (bedtime stories for lawyers) When lawyers request production of “all” relevant documents (and now ESI), they believe (or pretend to believe) that all or substantially all documents and ESI will in fact be retrieved by existing manual or automated methods of search. Corollary: in conducting automated searches, lawyers (and judges) operate under the assumption that the use of “keywords” alone will powerfully and reliably produce all or substantially all documents from a large document collection.

The “Hype” on Search & Retrieval Claims in the legal tech sector that a very high rate of “recall” *(i.e., finding all relevant documents) is easily obtainable provided one uses a particular software product or service.

The Reality of Search & Retrieval + Past research (Blair & Maron, 1985) has shown a gap or disconnect between lawyers’ perceptions of their ability to ferret out relevant documents, and their actual ability to do so: --in a 40,000 document case (350,000 pages), lawyers estimated that a manual search would find 75% of relevant documents, when in fact the research showed only 20% or so had been found.

Why is IR hard for lawyers? + Lawyers not technically grounded + Traditional lawyering doesn’t emphasize front- end “process” issues that would help simplify or focus search problem in particular contexts + The reality is that huge sources of heterogeneous ESI exist, presenting an array of technical issues + Deadlines and resource constraints + Failure to employ best strategic practices

National Archives and Records Administration9 Sedona Guideline 11 A responding party may satisfy its good faith obligation to preserve and produce potentially responsive electronic data and documents by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data most likely to contain responsive information.

National Archives and Records Administration10 Case Study: U.S. v. Philip Morris – Overall Discovery 1,726 Requests to Produce propounded by tobacco companies on U.S. (30 federal agencies, including NARA) for tobacco related records Along with paper records, records were made subject to discovery 32 million Clinton era records – government had burden of searching

ESI Universe of White House pertaining to tobacco lawsuit

National Archives and Records Administration12 Case Study: U.S. v. Philip Morris (con’t) – Employing a limited feedback loop Original set of 12 keywords searched unilaterally After informal negotiations, additional terms explored Sampling against database to find “noisy” terms generating too many false positives (Marlboro, PMI, TI, etc.) Report back and consensus on what additional terms would be in search protocol.

National Archives and Records Administration13 Example of Boolean search string from U.S. v. Philip Morris (((master settlement agreement OR msa) AND NOT (medical savings account OR metropolitan standard area)) OR s OR (ets AND NOT educational testing service) OR (liggett AND NOT sharon a. liggett) OR atco OR lorillard OR (pmi AND NOT presidential management intern) OR pm usa OR rjr OR (b&w AND NOT photo*) OR phillip morris OR batco OR ftc test method OR star scientific OR vector group OR joe camel OR (marlboro AND NOT upper marlboro)) AND NOT (tobacco* OR cigarette* OR smoking OR tar OR nicotine OR smokeless OR synar amendment OR philip morris OR r.j. reynolds OR ("brown and williamson") OR ("brown & williamson") OR bat industries OR liggett group)

National Archives and Records Administration14 U.S. v. Philip Morris Winnowing Process 20 million  200,000  100,000  80,000  20,000 hits based relevant produced placed on records on keyword s to opposing privilege terms used party logs (1%)  A PROBLEM: only a handful entered as exhibits at trial  A BIGGER PROGLEM: the 1% figure does not scale

Litigation Targets + Defining “relevance” + Maximizing # responsive docs + Minimizing retrieval “noise” or false positives (non-responsive docs)

National Archives and Records Administration16 Not Relevant and Retrieved Relevant and Retrieved Relevant and Not Retrieved Not Relevant and Not Retrieved FINDING RESPONSIVE DOCUMENTS IN A LARGE DATA SET: FOUR LOGICAL CATEGORIES DOCUMENT SETFALSE POSITIVES FALSE NEGATIVES

National Archives and Records Administration17 FINDING RESPONSIVE DOCUMENTS IN A LARGE DATA SET: THE REALITY OF LARGE SCALE DISCOVERY RELEVANT DOCUMENTS “HITS” ON NONRELEVANT DOCUMENTS ??????? ?????? ????? The Great Unknown

Measures of Information Retrieval Recall = # of responsive docs retrieved # of responsive docs in collection

Measures of Information Retrieval Precision = # of responsive docs retrieved # of docs retrieved

National Archives and Records Administration20 RECALL PRECISIONPRECISION 0100% THE RECALL-PRECISION TRADEOFF

Three Questions (1) How can one go about improving rates of recall and precision (so as to find a greater number of relevant documents, while spending less overall time, cost, etc., sifting through noise?) (2) What alternatives to keyword searching exist? (3) Are there ways in which to benchmark alternative search methodologies so as to evaluate their efficacy?

Beyond Reliance on Keywords Alone: Alternative Search Methods Greater Use Made of Boolean Strings Fuzzy Search Models Probabilistic models (Bayesian) Statistical methods (clustering) Machine learning approaches to semantic representation Categorization tools: taxonomies and ontologies Social network analysis

National Archives and Records Administration23 What is TREC? Conference series co-sponsored by the National Institute of Standards and Technology (NIST) and the Advanced Research and Development Activity (ARDA) of the Department of Defense Designed to promote research into the science of information retrieval First TREC conference was in th Conference held November 15-17, 2006 in Gaithersburg, Maryland (NIST headquarters)

National Archives and Records Administration24 TREC 2006 Legal Track The TREC 2006 Legal Track was designed to evaluate th effectiveness of search technologies in a real-world legal context First of a kind study using nonproprietary data since Blair/Maron research in hypothetical complaints and 43 “requests to produce” drafted by Sedona Conference members “Boolean negotiations” conducted as a baseline for search efforts Documents to be searched were drawn from a publicly available 7 million document tobacco litigation Master Settlement Agreement database 6 Participating teams submitted 33 runs. Teams consisted of: Hummingbird, National University of Singapore, Sabir Research, University of Maryland, University of Missouri- Kansas City, and York University

National Archives and Records Administration All documents discussing, referencing, or relating to company guidelines or internal approval for placement of tobacco products, logos, or signage, in television programs (network or cable), where the documents expressly refer to the programs being watched by children. - (guide! OR strateg! OR approval) AND (place! OR promot! OR logos OR sign! OR merchandise) AND (TV OR "T.V." OR televis! OR cable OR network) AND ((watch! OR view!) W/5 (child! OR teen! OR juvenile OR kid! OR adolescent!)) - TREC 2006 LEGAL TRACK XML ENCODED TOPICS WITH NEGOTIATION HISTORY – ONE EXAMPLE

Beyond Boolean: getting at the “dark matter” (i.e., relevant documents not found by keyword searches alone)

National Archives and Records Administration27 TREC Legal Track 2006: Percentage of Unique Documents By Topic Found By Boolean, Expert Searcher, and Other Combined Methods of Search

National Archives and Records Administration28 TREC Legal Track 2006: Sort by Increasing Percentage of Unique Documents Per Topic Found By Combined Methods Other Than A Baseline Boolean Search

National Archives and Records Administration29 INCREASING EFFORT (time, resources expended, etc.) Boolean Run Alternative Search Run Boolean vs. Hypothetical Alternative Search Method B C D SUCCESS (in retrieving relevant docs) A x y

Strategic Challenges Convincing lawyers and judges that automated searches are not just desirable but necessary in response to large e-discovery demands.

Challenges (con’t) Having all parties and adjudicators understand that the use of automated methods does not guarantee all responsive documents will be identified in a large data collection.

Challenges (con’t) Designing an overall review process which maximizes the potential to find responsive documents in a large data collection (no matter which search tool is used), and using sampling and other analytic techniques to test hypotheses early on.

Challenges (con’t) Parties making a good faith attempt to collaborate on the use of particular search methods, including utilizing multiple “meet and confers” as necessary based on initial sampling or surveying of retrieved ESI, based on whatever methods are used.

Challenges (con’t) Being open to using new and evolving search and information retrieval methods and tools.

The Research Challenge Scaling up TREC to real-world litigation Finding better ways to account for (i.e., sample) the “dark matter” Benchmarking competing search methods with objective standards Measuring how paying greater attention to front- end “process” improves the results found by search tools and methods

National Archives and Records Administration36 References J. Baron, D. Oard, and D. Lewis, “TREC 2006 Legal Track Overview,” available at dings.html (document 3) dings.html The Sedona Conference, Best Practices Commentary on The Use of Search & Retrieval Methods in E-Discovery (forthcoming 2007) TREC 2007 Legal Track Home Page, see

National Archives and Records Administration37 References ICAIL 2007 (International Conference on Artificial Intelligence and the Law), Workshop on Supporting Search and Sensemaking for ESI in Discovery Proceedings, see see also J. Baron and P. Thompson, “The Search Problem Posed By Large Heterogeneous Data Sets in Litigation: Possible Future Approaches to Research,” ICAIL 2007 Conference Paper, June 4-8, 2007, available at ws/ (click link to conference paper). ws/

National Archives and Records Administration38 References Collaborative Expedition Workshop #45, Advancing Information Sharing, Access, Discovery and Assimilation of Diverse Digital Collections Governed by Heterogeneous Sensitivies, held Nov. 8, 2005, see bin/wiki.pl?AdvancingInformationSharing _DiverseDigitalCollections_Heterogeneou sSensitivities_11_08_05

National Archives and Records Administration39 Jason R. Baron Director of Litigation Office of General Counsel N ational Archives and Records Administration 8601 Adelphi Road # 3110 College Park, MD (301)