Before we get into the tactics and strategy of modern ediscovery document review, it is important to remember the exact purpose of the review phase in discovery. According to Federal Rules of Civil Procedure, Rule 26, any party may obtain discovery regarding non-privileged information that is relevant to another party’s claim or defense. A document review is the process of distinguishing relevant data from irrelevant data, and provides information and evidence about the facts and issues of the matter.
Modern document review is governed by the practice of Electronic Discovery (ediscovery). In the practice of law, ediscovery is a relatively new practice area, only a couple of decades old. But at its core, ediscovery is not a new invention – it is simply discovery, as it is practiced in today’s digital world.
In order to be successful, document review teams need to be able to organize collections of documents and data and search for potentially relevant information, all while keeping confidential and privileged information from being produced to opposing counsel. It is a careful balancing act that will require careful planning, diligent execution, and quality control processes at every step of the way.
This excerpt from our document review white paper focuses on setting up a strategic plan of action for document review. For more information on document review, including tips on quality control, privilege review, and production considerations, download the white paper here.
Start With An Understanding of Strategy
We can’t emphasize this enough: ediscovery reviewers must have a document review strategy. This strategic plan should be formulated into ESI protocols before the “meet and confer” conference between opposing attorneys. This meeting, which is required under Federal Rules of Civil Procedure (FRCP) Rule 26(f), is the point at which attorneys should make plans with an eye toward costs and proportionality as they negotiate and establish ediscovery protocols.
Your team should establish project scope and deadlines, which include:
Be prepared to discuss the use of technology for managing and assisting with the review of large amounts of data and discuss how each party plans to eliminate irrelevant data. If parties fail to put these understandings in writing at the Rule 26(f) conference, it can open up one side to spoliation charges.
Try to limit the scope of what needs to be reviewed where possible using targeted filtering and culling techniques prior to a manual review. Other advanced technologies, such as Nextpoint’s new Data Mining app for Early Case Assessment, can be used prior to, or in combination with, a human review to reduce the amount of documents the human reviewer(s) must pore over.
Also determine if discovery is all ESI or mixture of ESI and paper. Decide what you intend to do with the paper component. Converting it to an electronic format to incorporate into the ESI data set is ideal.
Your Plan of Action
A successful document review begins with solid planning. Hiring the right staff, bringing in outside vendors and technical help, training your team, and even choosing a location cannot be last-minute decisions. Here is what you need to think about:
Who: Team Member Selection
The lead attorney responsible for the review should be:
Steps for review team selection:
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Choose a project manager (if not the lead attorney)
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Determine team size – this will depend on data volume, timeline and budget
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Look at the case and decide if subject matter experts will be required
What: Training
Training on the matter should include:
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Specifics of the document request
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Facts or issues in question in the matter
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Codes being used
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Subjective – issues/relevancy
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Privilege and Confidentiality
Training on the technology should include:
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Searching
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Sampling
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Locating assigned document sets
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Coding/tagging interface
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Elevating documents for further review
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Annotating docs to convey key information
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Redacting documents
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Expectations regarding review rates
Where: Location Selection
How to choose the physical and/or virtual location of your review:
How Much: Cost Considerations
Tips for controlling costs:
Built Out a Solid Review Guide
The review process is the most time consuming, error prone and costly part of ediscovery. To navigate the challenges of review, create a review guide to define the process and help reviewers make informed decisions based on:
The guide should be clear, set realistic goals for reviewers and help to enforce a consistent management structure to oversee the review. Use reporting tools in the application to track the project and reviewers’ progress.
Additionally, the data should be searched and tagged for privileged names, email addresses, law firm domains or legal terms before reviewers review those documents. Reviewers would then be on notice that a document is potentially privileged, and review it to confirm that all the elements of a privileged communication or attorney work product are present.
The features and functions of the review application will influence the actual workflow. For example, when tagging and coding documents, can you use bulk coding? Can emails be tagged separately from their attachments? Can you control inconsistent coding? Can documents be easily redacted? Is a privilege field available, to eliminate additional privilege review? Make sure your review platform is capable of fulfilling the goals outlined in your review guide.
