One of the most time-consuming and expensive elements of discovery is reviewing your client’s documents to determine responsiveness and to screen for privilege. Litigants often negotiate search terms and a review protocol for electronically stored information (ESI). Indeed, courts often require an ESI protocol. Nevertheless, the document review process requires a careful review by multiple attorneys, each making individual judgments as to the responsiveness of individual documents. Taking time before the document review to understand the facts, key players, and issues bearing on responsiveness and privilege can reduce the time and expense of the document review and provide tremendous value to the client. The following are a few tips to make the process more efficient.
No. 1: Understand the Key Individuals and Issues
An advanced understanding of key individuals and issues in play is essential. Discuss with the client a timeline of important events relevant to the litigation, noting specific periods of time for which documents are likely to be responsive to the document requests. Know individuals and email domains, including consultants and other third parties, that may fall within the privilege. And discuss with the client any “hot” issues or documents for which reviewers should be on the lookout. Bear in mind, however, that the client may not be aware of what the documents will reveal. You are responsible for identifying and relaying to the client any hot issues that arise during review. Finally, discuss client-specific issues bearing on the review, such as confidentiality, trade secrets, or protected health information.
No. 2: Preview Documents and Budget Time
Document review requires close judgment calls on particular documents, and it is often not immediately clear whether a document is responsive until you understand the document in context. A very easy way to make a document review more time-consuming and expensive is having to re-review documents after learning that context. And it is easy to underestimate the time it will take to make those judgments. Prior to beginning the linear review, take time to preview sample sets of documents. Learn what documents the review team will encounter. If necessary, discuss specific documents with the client to understand relevant background. Then, set a realistic time frame for the review. I expect to review between 50 and 100 documents per hour, depending on the complexity of the documents being reviewed. By knowing the total number of documents to be reviewed and understanding the nature and complexity of those documents ahead of time, you can properly budget time for the review, avoid duplicating review efforts, and meet discovery deadlines.
No. 3: Draft a Written Protocol
It is important that the review team make responsiveness and privilege judgments uniformly. Even if brief, a written document review protocol is an easy way to keep reviewers aligned. The protocol should summarize the litigation and document requests, highlight key issues, and provide guidance on the types of documents the reviewers are likely to encounter. The protocol should reflect an iterative process. Revisit, update, and recirculate the written protocol as key individuals and issues are better understood through review.
No. 4: Customize the Review Space for Your Needs
Online document review platforms are the norm, and they nearly always permit the review team to customize issue tags and actively highlight important search terms (including privileged names). After previewing the documents but before the review team begins, work with your review platform technician to create any nonstandard issue tags to address client-specific needs (e.g., trade secret, protected health information, and specific responsiveness categories). The more specific and self-explanatory the custom issue tags, the clearer it will be to the reviewers how to tag particular documents.
No. 5: Communicate Throughout the Review
Meet with the review team regularly throughout the review process. Discuss with the team the types of documents or individuals they are encountering to ensure similar documents and families are being tagged consistently. Is the team reviewing documents at the level of the individual document, or is the team reviewing entire document families? How are you treating privileged communications within responsive families? Answering these questions uniformly will reduce the time needed to re-tag documents uniformly. Finally, perform a daily review of documents flagged for further review to identify any issues that the document protocol has not accounted for.
Following these tips can greatly reduce the time and expense needed for a linear review, provide value to your client, and help to meet your client’s discovery obligations in a timely manner.
W. Joshua Lattimore is an associate at Faegre Drinker Biddle & Reath LLP in New York City, New York.
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