In the wee hours, a beat cop sees a drunken lawyer crawling around under a streetlight searching for something. The cop asks, “What’s this now?” The lawyer looks up and says, “I’ve lost my keys.” They both search for a while, until the cop asks, “Are you sure you lost them here?” “No, I lost them in the park,” the tipsy lawyer explains, “but the light’s better over here.”
I told that groaner in court, trying to explain why opposing counsel’s insistence that we blindly supply keywords to be run against the email archive of a Fortune 50 insurance company wasn’t a reasonable or cost-effective approach to electronic data discovery. The “Streetlight Effect,” described by David Freedman in his 2010 book Wrong, is a species of observational bias where people tend to look for things in the easiest ways. It neatly describes how lawyers approach e-discovery. We look for responsive electronically stored information only where and how it’s easiest, with little consideration of whether our approaches are calculated to find it.
