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Companies will pull the most outrageous crap imaginable when responding to legal requests. It may be hard to prove they lied, but they will obstruct. Consider Google in a recent case.
The case was a suit between Sprint Nextel and some of its affiliates over the Sprint-Clearwire WiMax venture. Google was one of the investors in venture and was served with a subpoena calling for documents related to the transaction. Google’s response was that it would be an unreasonable burden for the company to search its own electronic files. According to Google’s counsel, “Google can perform such a search, but because of its e-mail system, it cannot do so as easily and inexpensively as other, similarly situated companies.” Click here to see the motion to compel that followed. (PDF)
(Note: This may have been obstructionist on Google’s part, but presumably it’s not evil. After all, it’s Google philosophy that you can make money without doing evil. Of course, it’s also Google philosophy that “It’s best to do one thing really, really well” and “Google does search.” Something in this doesn’t add up. We’ll have to look into it further, but we’re not in a position to do that research as easily and inexpensively as some similarly situated columnists.)
All of this is why I get the sense that companies will be expected to take available technological measures to preserve documentation for legal proceedings and to search them thoroughly. There are many types of products involved in this, including search and legal hold. The usual way that electronic documents are searched is that the attorneys for both sides agree on search terms or keywords, a simple search is executed and voila. As you know from your own keyword searching, the answer is probably in there, along with a large number of false positives. And more than a few documents that could be relevant, but that didn’t strictly meet the search terms, will be missed.
What is done with these documents once they are found? The rule is that they have to be preserved so that they will be available for the legal case and not destroyed or modified. The old-fashioned way to do this is to make copies of the documents returned by the search, put them on CD-ROMs and store them in a (physical) file folder in the lawyers’ offices.
Corporate counsel is most worried about false positives, in other words, sending out documents that are unrelated to the matter but that may reveal confidential information. The other side is most concerned about false negatives, when relevant documents aren’t found in an electronic search.
Concept Search: A Better Way?
From my conversation with Magistrate Judge John M. Facciola of the United States District Court, D.C. Circuit, and from a lot of the lawyers I’ve talked to about this, I get the sense that they think that the technology is available, or will soon be, to improve these document searches, and they will expect companies to use it. The big item on that agenda is “concept search.”
The notion of concept search is that you don’t need to hit the keywords exactly in order to get a hit in the search. This should cut down both on false positives and false negatives. How do they do it? Recommind says you take an initial set of search results and pick out a few especially representative documents. The software analyzes these documents to see how the terms are used in them. It then feeds this analysis back into the document database and finds documents that relate to the concepts behind the use of those words and categorizes them by topic. At least, that’s the claim. I’ve never seen it in action. There is something to theory, and in my conversation with Judge Facciola, who is influential in this field, he was enthusiastic about the concept of concept search.
On the legal hold end, Recommind has a new offering called Insite Legal Hold. Working with the same search software, it allows you to take search results and first examine them manually for false positives. Then it preserves the documents securely. It can also automatically preserve new documents that meet the search criteria.
Why is an electronic repository better than a CD in a filing cabinet in the lawyer’s office? First, of course lawyers are all trustworthy, but the digital repository probably includes some way to demonstrate that the documents have not been tampered with. Perhaps it all still comes down to trusting the admin or corporate counsel anyway, but there’s still some value in it. Also, the ability to preserve new documents as they are created sounds interesting, although it needs to be constructed carefully so that there is the opportunity for inside counsel to review before the document is locked away.
This new legal document technology is cool and promising, but it’s probably wise to use it as a supplement to older, more established methods.
In a few years you can probably expect such applications to grow pretty rapidly as court cases establish the “need” for them. With their assistance, even companies as technologically behind the curve as Google can meet their legal obligations.
Security CenterEditor Larry Seltzer has worked in and written about the computer industry since 1983.
For insights on security coverage around the Web, take a look at eWEEK.com Security Center Editor Larry Seltzer’s blog Cheap Hack.