Don't Be Afraid Of The Known Unknown – Validating Your Search Process

On August 7, 2018, the Northern District of Illinois issued an opinion that provides practical guidance regarding the validation of discovery processes and productions in City of Rockford v. Mallinckrodt ARD Inc.¹ Drafted with a welcome touch of whimsy by Judge Iain Johnston, the opinion speaks to a fundamental question in document investigations: How do we know we are done? This is followed by a second, equally important question: Are we comfortable with what we have missed?

Judge Johnston incorporated elusion test principles frequently associated with Technology Assisted Review (TAR) into a traditional keyword searching protocol negotiated by the litigants. While TAR and keywords are often considered two different paths to responsive document retrieval, his unification of these two search processes ensures this ruling will drive discussions between litigants who intend to follow either route.