eDiscovery Review: Planning the Review, Part 1

Early in the litigation the case team must make a determination about the scope of the review: what is to be reviewed, how it is to be reviewed, and what is the intended outcome. To a great extent, the discovery order will direct what data is to be collected and reviewed.

Meet and Confer

A meet-and-confer conference between the parties should be conducted early on in the planning stages to make these decisions. Federal Rules of Civil Procedure 26(f) states that these initial meeting are to include discussions and decisions on matters pertaining to electronically stored information (ESI). Topics to be determined include preservation of ESI, the form of production for the ESI, and approaches for asserting privilege and work-product protection claims. Each of these decisions impact the planning of the document review.

Scope and Objectives of the Review

Historically, lawyers were obligated to review every document presented to them by the client or opposing counsel in the litigation for relevance, responsiveness to discovery requests, and privilege. With the proliferation of email and other electronic documents, reviewing each and every document is often unrealistic. While the scope of the review is usually dictated by the discovery request, a key strategy is to control the scope of the review through the use of technology or other aids. These techniques should be discussed and agreed upon during the initial planning meetings.

Techniques that can be useful to limit the scope include:

  • Strategic collection of data - it may be possible to do a more selective collection of key custodian data rather than a broad collection. There may be agreed upon file types or directory locations.
  • Strategic filtering of collected data - this may take the form of applying date limitations or keyword filters against the data that has been collected.

 

The decision and selection of a knowledgeable review manager to manage the review process is an essential first step in the planning phase. The review manager must assure that those selected to conduct the review have a clear understanding of the case objectives.

There should be clear documentation of the key issues and a distinction between issues of fact and issues of law. Providing examples of the kind of evidence the litigation team will need to effectively prosecute or defend the matter will make the review team aware of what to keep their eyes open for. An understanding of who the key players are and what roles each plays in the case will enhance the review teams' ability to hone in on the pieces of evidence critical to the litigation.

The review objectives may evolve as a case progresses through the different phases of litigation. The following represents a few types of review that may be undertaken:

  • Determine the relevancy of the information or documents collected or produced
  • Bibliographically code database fields to facilitate improved search and retrieval of the documents collected or produced
  • Determine whether or not any privilege applies to the documents subject to production
  • Determine to which request(s) for production the documents are responsive
  • Identify documents that should be marked as "confidential" or have portions redacted
  • Relate key documents to alleged facts or legal issues previously outlined in the case
  • Relate key documents to key players who may testify about the documents
  • Identify other subjective information

 

In a few circumstances, a single review may encompass all these objectives. In reality, they are generally done in phases and by a variety of different reviewers, each with a clearly identified role in the review.

Defining Review Protocols

A coding manual is typically prepared to define not only the objectives of the review but the rules of engagement for the review team. Historically, a coding manual defined the bibliographic fields that were to be captured by the reviewers into the review database. Today, with many reviews being done in digitized databases that already capture much of this information, the manual may take different forms depending on the type and format of the review.

Examples of information that may be captured in a coding manual include:

  • Rules for adding additional bibliographic information to the database such as: type of document (memorandum, letter, email), entities named in the document, marginalia found on paper docs that have been scanned, etc.
  • Publication of look-up table to aid in identification of key players and known entities
  • Rules for identification and subjective coding/tagging of the responsive and producible documents with an outline of the issues to be identified and possibly sample documents that are representative of the issues at hand
  • Rules for the handling of documents requiring redaction
  • Rules for identifying and coding/tagging privilege documents
  • Rules for identifying and handling confidentiality issues
  • Rules for adding annotations to documents in the form of attorney notes and work product
  • Rules for coding/tagging emails and their attachments and email threads
  • Rules for the identification and tagging of non-responsive documents, spam and junk email.
  • Rules for handling of unreadable, password protected or other faulty documents

 

Determining Review Methodologies

There are many different methodologies used for a document review. Sound choices usually are impacted by multiple factors:

  • Agreements made by counsel during the meet-and-confer phase or as ordered by the court
  • Time and cost constraints for the project
  • Collection and restoration methods
  • Functionality available within the review platform
  • Available resources to support different formats

 

Physical Format

The physical format for the review should be established during the initial planning stages. A review may take many forms and utilize several different formats:

  • Manual paper review
  • Internal review using an in-house review system
  • Internal review using a hosted online system
  • External review using temp attorneys set-up in a war room with the necessary review tools.

 

Review Assignments

In a typical scenario, the documents to be reviewed are divided up such that each reviewer is reviewing a specific numbered range of records that do not overlap with any other reviewers.

In more complex scenarios, the review sets may be divided based on the source of the records or a subset of records that meet search specifications for a particular key player, date range or case issue. The review assignments are then based on the importance of the source or key player, for example, with higher-level attorneys reviewing the most critical key players' records, and more junior-level attorneys or paralegals reviewing less important ones.

To aid in an expedited privilege review, searches may be conducted for names of attorneys or law firms that would indicate a high probability of the result set containing attorney/client privileged communications. Documents meeting the privileged search criteria could be assigned to an attorney whose task is to review for privilege and mark the documents as such.

Establishing Project Timetable and Workflow

The design of a project timetable or workflow is critical to the review process and should be established at the outset of the project. The workflow should be designed by the review manager with the assistance of any vendor/consultant retained and the firm's internal litigation support personnel. Often, those most familiar with the technology will be able to provide invaluable guidance on how to leverage that technology to maximum advantage.

Agreements made during the meet-and-confer process will influence the review objectives, techniques used, platform chosen and the overall project workflow and milestones. Discovery deadlines will also influence the review strategy. For instance, a DOJ second request with a 15-day turnaround might be handled differently than a standard litigation matter with a more long-term discovery schedule. Accordingly, there are different strategies which are determined by the nature of the request and the resources of your organization.

The review team should work with the electronic discovery vendor/consultant to develop the most efficient workflow for the project. Often, the vendor/consultant will be able to counsel the review team on the most efficient approach based on the strengths or limitations of the review tool. Do not assume that the workflow that worked in your last case using a different tool will work the same way on the next case and a different review platform. Work with the vendor/consultant to develop the methodology that makes the most sense given the needs of each specific case.

Other factors to consider regarding the creation of a project timetable include:

  • Overall volume of data to be reviewed and complexity of the issues being reviewed
  • Internal resources devoted to the review project
  • Volume of redactions and the workflow provided to perform them
  • Resource availability of the vendor of choice
  • Ability of vendor to produce to requirements; a sample run should be performed well in advance of any deadlines

 

The timetable should include:

  • Deliverable deadlines for the vendor/consultant for each phase of the project:
    • Collection and restoration of the data
    • Processing, searching, and hosting the data
    • Production of responsive documents (as well as privileged documents if there is to be separate production)
  • Daily, weekly, monthly document totals per reviewer
  • Other metrics to be used to measure the progress of the review and their milestones
  • Production due dates set forth by the document request or the court

 

Milestones may be tied to specific custodians who are important to the matter, or critical time periods, issues or concepts. Using the power of the review tool to manage the workflow by segregating documents along these lines can greatly increase the speed and efficiency with which the project is completed.

Another key to ensuring that the workflow proceeds smoothly is to determine who will create the work assignments and how and when the assignments will be disseminated to the review team members. Depending on how a project is staffed, work assignments may be created by the vendor/consultant, the review manager, a paralegal or someone in the firm's litigation support department.

Review Objectives

A key step in planning for the electronic review is to make sure that those selected to manage and conduct the review have a clear understanding of what the case is about. All those involved in selecting the review platform and spearheading the review process should review copies or summaries of the petition/complaint and answer(s). There should be a clear delineation of the key issues that discern between issues of fact and issues of law. Providing examples of the kind of evidence the litigation team will need to effectively prosecute or defend the matter will make the review team aware of what to keep their eyes open for. An understanding of who the key players are and what roles each plays in the case will enhance the review team's ability to hone in on the critical pieces of evidence to the litigation.

All members of the review team should be provided copies or summaries of any discovery requests and answers thereto. Any special discovery orders or stipulations should also be summarized and available to the review team to make sure that the review is conducted in compliance with those orders or agreements.

Review Techniques

Additional techniques to be employed during the course of the review may include:

Culling irrelevant documents

A paralegal or junior-level associate may go through the repository to identify records known not to be relevant to the matter at all, suppressing them from further review, or deleting them from the database altogether. They may engage the help of a litigation support specialist or electronic discovery vendor to automate the identification of known irrelevant documents so that the reviewers don't have to look at every single document that has all the attributes as those previously identified as irrelevant.

Identifying producible documents

After culling, suppressing irrelevant documents, and providing the necessary indexing to the document repository, the review team is ready to address the task of reviewing documents that need to be produced (or that have been produced by opposing parties). In a large repository with several reviewers, this task is often divided in a logical way in order to meet case management deadlines.

The documents may be simply divided up by volume such that each reviewer is reviewing a specific numbered range of records that don't overlap with any other reviewers. In more complex scenarios, the review sets may be divided based on the source of the records, or a subset of records that meet search specifications for a particular key player or issue. The review assignments are then based on the importance of the source or key player, for example, with higher-level attorneys performing the most critical key players' records, and more junior-level attorneys or paralegals reviewing less important ones.

To aid in an expedited privilege review, searches could be conducted for names of attorneys or law firms that would indicate a high probability of the result set being attorney/client privileged communication. The documents meeting the privileged search criteria could be assigned to an attorney whose task it is to review for privilege and mark the documents as such. Documents that are responsive to a request for production can be marked for production in a specific field, or with a simple tagging feature. If possible, it is best to identify which request the document is responsive to, as it may be required to provide this information to opposing parties. Further, documents subject to production should be reviewed for confidentiality or privacy requirements. If there is specific information that needs to be redacted, such as Social Security numbers, names, addresses, and phone numbers, a team of trained redaction specialists can go through the database, reviewing for this kind of information, and apply the appropriate electronic redaction marks and confidentiality stamps. The team's ability to perform electronic redactions is dependent on the platform and format of the documents being reviewed. The number of redactions and how they will be performed is an important piece of the planning process when selecting the review platform and format of the documents loaded onto it.

Subjective coding

If information on key issues and players has been developed, the review team can capture documents that relate to key players and known issues in the case. Look-up tables can be developed to aid the reviewer to quickly pick from a pre-populated list of options. Key players may also be identified by the bibliographic coding staff if they are asked to capture all names in a document. Technology can also be leveraged to provide an index of all the key words, revealing the names of key players that can quickly be drilled down on to review the documents containing the names of those key players. Often times, an index can reveal the name of a key player hidden in the metadata of an electronic document versus anywhere on the document itself. This is one argument for collecting and indexing as much information as you can in native format.

For additional information regarding this process, see eDiscovery Review: Planning the Review, Part 2.

Source: EDRM (edrm.net)