Electronic Discovery Institute Course - Class 21 - Document Review
Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on April 12, 2018. Go to https://www.lawinstitute.org/ to sign up for it.
This course is taught by Wendy Curtis, eDiscovery counsel for Orrick; Dottie Perillo, a discovery strategist for DuPoint; Ashish Prasad, general counsel for eTERA Consulting, an electronic discovery consulting company; and Pallab Chakraborty, eDiscovery & Information Governance Counsel for SolarCity.
Introduction & Overview
Document review occurs after processing but before production. Decisions about relevance and privilege are made during review. Parties sort and categorize documents collected in response to a subpoena.
Cost & Timing Impact
Document review can be quite expensive if there are large numbers of documents. Document review can be planned in a way so as to not adversely impact the deadlines which must be met in a case. The review should occur as early as possible. Enough contract attorneys must be staffed in order to perform the review.
ESI is often voluminous even for small cases. Meet and confers on search terms may delay the beginning of document review.
Document review is usually one of the most expensive phases of discovery. Early Case Assessment can reduce the cost. There is the possibility that the high cost of document review can lead a client to settle a matter. Document reviews are usually understood as part of the overall litigation costs. Contract attorneys, which carry a lower hourly rate than law firm associates, usually conduct document review.
Computer Assisted Review; and the auto identification of near duplicates can reduce the cost of document review.
Model Rule 1.6(c) states that an attorney must make reasonable steps to make sure that the review process is reasonably sound and that non-responsive documents are not produced. Model Rule 5.3 states that a lawyer must ensure that non-lawyers are performing review in accordance with the lawyer's professional obligations. A lawyer must truly supervise the entire document review process.
The project manager at the review vendor can perform administrative functions, but is very important that the lawyer be involved in the review process.
Document Review Workflow
Roles and responsibilities should be assigned and goals identified at the outset of a review project. What is the timeline for the project? What privileges are concerned? What are the parameters for production set by the court? - these are all important considerations.
Work-Product & Privilege Logs
The case team is responsible for the content of the privilege log, even it is prepared by the document review team. The document review team merely makes preliminary determinations as to the privilege of documents. There must thorough training as to what constitutes attorney-client privilege or work product.
The case team should compile a list of attorneys to help isolate privileged documents. A work flow should be prepared to help determine when privilege filters should be run. Ideally they should be run throughout the review process.
A metadata, or categorical log may suffice for a privilege log.
Redactions can be made for private information or privileged information. Redactions may also be made for non-responsive information. Certain technical settings must be implemented in order to make sure that redacted information is not visible to the recipient of a production.
Technology & Vendors
The case team and the review team, should collaborate with the vendor providing the technology for the review in formulating the workflow. Technology Assisted Review can help minimize the number of documents that must be reviewed. Search terms can used to help cull documents from the review set. Some documents may not be processed because they are not searchable. The document review team may have to review these documents.
The cost for reviewing documents may be based on the number of GBs reviewed, or the overall number of documents.
The Quality Control Process: Initial Considerations
A review team should be split into groups of 10-15 contract attorneys. A supervising contract attorney should monitor the efficiency of each team's work. Mistakes must be caught quickly, and contract attorneys should be taught how to avoid them in the future. Quality control should be done in real time. Searches should be run to look for coding defects.
Review vendors should be able to provide reports on a weekly basis on the accuracy of the coding decisions, which also indicate when the review should be completed. The case team has the duty to give substantive instructions and to also conduct quality control. Privilege filters should be run throughout the document review process. Quality control is one of the most critical aspects of a successful document review. Random sampling should be done of every's contract attorney's assigned batch.
Logs should be maintained of questions that came up during the review, and the answers given to those questions.
Integration between the law firm and the review vendor is very important. The law firm should perform some second tier review of documents.
The Quality Control Process: Statistical Sampling
Samples should be continuously made in order to confirm that process is meeting established standards. The case team should be in constant communication with the document review team. The pace of the review should be monitored. Document review decisions may be made before important information about a case is obtained.
The Quality Control Process: Additional Considerations
The QC process should attempt to determine if conflicting decisions have been made about documents. If global de-duplication is performed, it may be necessary to retain the custodian data for each copy of a document. Once a review is complete, technology can be used to determine if redactions were applied as intended.
Every production must be certified by outside counsel.
Document Review Strategies & Client Goals
The pace and cost of document review must be monitored. Budgets must be adhered to and deadlines met.
One should consider the fee model used by a vendor. A vendor may use an hourly or a per document model.