DOCUMENT REVIEW SERIES / PART ONE
When most people think about ediscovery, they probably imagine a lawyer staring intently at a computer screen, hoping to find an incriminating document in a massive database of collected files.
If that is your mental image, what you are picturing is the document review phase of ediscovery. However, if you’ve read our eBook on culling and filtering, you know that “Review” is just one part of the modern discovery process. We begin our deep dive into the aspects of executing a successful ediscovery document review in this part one of a three-part blog series.
Ediscovery Document Review Preparation
Not only is Review is just one phase of ediscovery, but the part where lawyers actually look for incriminating evidence is just one small part of the Review process. In our experience, there is a lot of blocking and tackling that must happen before you can unleash teams of lawyers to review evidentiary documents.
Review comes after data has been collected, processed, culled, filtered, and produced. It is the phase of ediscovery where your team will discover potentially relevant documents and evidence needed for a matter. But even at the review phase, much of your time and effort will be directed at analyzing and organizing documents and evidence. And even though you have already filtered and culled your data, more culling and filtering will happen during Review.
A well-organized review team will use analytics and strategic thinking to get a sense of the document collection before any searching or reviewing even takes place.
Not All Document Reviews Are the Same
Before you can identify responsive documents, you need a strategy to ensure a review is comprehensive, thorough, and defensible. Of course, there is no one right approach to Document Review. Small to mid-sized matters might be handled aptly with well-crafted search terms and analytics to identify potentially responsive documents. Large scale-litigation will demand large teams of reviewers, which will require high levels of organization and detailed coding tools.
Too many legal teams go into Review blindly, hoping or assuming that they will find responsive documents along the way. A well-organized review team will use analytics and strategic thinking to get a sense of the document collection before any searching or reviewing even takes place. This will help find responsive documents and help make smart decisions about how to allocate resources and what legal strategies to pursue. If a document collection seems unlikely to produce responsive documents, it may be time to reassess your strategy.
Tech Tools of the Document Review Trade
For the most efficient review process, begin by giving your reviewers a palette to paint with: modern, intuitive coding tools. They will need these tools to quickly and accurately code responsive, non-responsive, and privileged documents. That begins with developing a specific coding or tagging “panel” based on an analysis of the issues in the case. Coding panels typically contain data fields for responsive or non-responsive, privileged, confidentiality levels, and key documents.
To identify issues, custodians and other relevant items, start with a review of all complaints, pleadings, papers, court orders, discovery requests and responses (if any). The information you can glean from these items include lists of pertinent names, their roles, and what we know about these individuals so far.
This will help provide context while reviewing the documents, especially email. In business disputes, look for descriptions of financial transactions at issue or examples of accounting issues that may be involved in a matter. Also, consider when and how to use bulk tagging, which can save time and money in the coding process.
The document review process is the most time consuming, error prone and costly part of ediscovery. Create a review guide to define the process and help reviewers make informed and consistent decisions. This guide should be clear, set realistic goals for reviewers and help to enforce a dependable management structure to oversee the review. Use reporting tools in the software application to track the project and reviewers’ progress.
Limit the Scope of Document Review
As we discussed in our recent posts on filtering, there are technical and automated processes you can use to limit the scope and cost of discovery. Data filtering should continue during Review, but in a more targeted and informed way.
Now that you have your hands on the evidence, it is advisable to use analytics to get a handle on the evidence and eliminate even more documents likely to be unresponsive. Potentially important filtering includes setting date ranges for your review, eliminating more file types, authors, subject lines, and email domains. Look for law firms’ domains and identify users with multiple email domains. This will help ensure you can isolate privileged emails and won’t miss potentially relevant ones.
It is also important to always check your work and have processes in place to ensure your review is defensible.
Before starting review, be sure to:
- Understand how the information was collected and organized
- Make coding fields accurate. Provide clear guidance for reviewers.
- Document your search and review procedure, how you allocated sets of data, and the possible use of predictive coding or other TAR methods (in very rare cases).
- Put a solid Quality Assurance process in place
If these controls and processes are in place, your team can begin actually reviewing the documents in a collection. (We will discuss that process in Part 3 of this blog series.) Remember, time, money and perhaps even the case can be saved with an efficient and effective analysis and organization.
Look for Part 2 in our three-part series on eDiscovery Review, explaining how to create review sets and manage privilege logs. In the meantime, if you have questions regarding effective review methods, reach out to the experts at Nextpoint. We are here to help.
Part 2 in our document review series is now published: eDiscovery Document Review: Searching for Success