Good planning is the common denominator of successful eDiscovery review projects. Planning builds on the work done during the identification, processing and analysis stages. Clear goals must be set at the outset. Finally, you need to assign the right people to the review team.
eDiscovery review builds on what’s come before
Each successive stage of the EDRM builds on the preceding stages. Nowhere is this truer than review. The full universe of the client’s ESI is the starting point of every eDiscovery project. By the review stage, that ESI has been repeatedly assessed and filtered.
Identification locates potentially relevant ESI for review and production. Collection copies the identified ESI for processing and review. Both identification and collection aim to limit copying non-relevant files to the extent possible to minimize unnecessary review.
Next, processing prepares the collected data for review. Data is formatted to load into an eDiscovery review database. Large volumes of non-relevant files are culled through de-duplication, de-NISTing and data filtering.
Analytics tools are then used to remove more non-relevant files from the dataset prior to review. In addition, the processed data is organized and prioritized for review. My articles “Strategic Uses for Analytics Part 1” and “Strategic Uses for Analytics: Part 2” give an in-depth look at strategic uses of analytics for more efficient and cost-effective review.
Set your goals before starting the review
The first step of review is setting goals. Most reviews have one or more of these five goals:
- Responsiveness – Responsiveness reviews are the frontline of eDiscovery review. Fortunately, advanced eDiscovery technology has rendered old school linear reviews of the full dataset obsolete. By leveraging advanced analytics and filtering tools, it’s possible to limit the scope of responsiveness reviews and prioritize review of higher value documents.
- Privilege – Searches are run to identify potentially privileged documents. The hits are reviewed for attorney-client privilege and work product. The most effective privilege search is for names, email addresses and (for outside counsel) email domains of the client’s lawyers and legal staff. Name searches are frequently supplemented with privilege-specific keyword searches.
- Substantive issues – Substantive review for issues is hands-down the most interesting type for reviewers. It can have a number of contexts, such as:
- First pass review of responsive documents – As a preliminary step the case team develops an issues list for tagging documents. The initial list can, and generally will, be supplemented as the team learns more about the case and the documents during the review.
- In-depth review of documents relating to a particular issue – Analytics, keyword searches and issue tagging can all be used to identify “hot” documents for further review. A typical reason for an in-depth review is to locate the best documents to support a motion for summary judgment. Another example is reviewing damages-related documents in connection with settlement discussions.
- Focused review for expert reports – Documents relating to specific subjects must be identified and transmitted to experts for their review. The case team can use some combination of analytics, searches and issue coding to identify these documents.
- Deposition preparation – Deposition preparation is case- and witness-specific. The anticipated subject matter of the examination and the witness’ background and knowledge are important factors. A broad prep includes everything collected from the witness plus files that are hits on his or her name. A narrower review scope could be limited to emails between the witness and the opposing party or documents written by the witness about a key issue.
- Opposing party and non-party productions – The fifth main goal is reviewing documents produced by the opposing party and non-parties. Linear review of the entire production isn’t essential or, in most cases, practical. Instead, use keyword searches and analytics to focus the review on important issues. The scope of review should be proportional to the nature and value of the case, size of the production and its importance.
Assemble the team based on review goals and practical considerations
With your review goals set, it’s time to assemble the review team. Most reviewers are outside counsel. However, depending on the case a review team may also include paralegals, in-house counsel and contract reviewers.
There are multiple factors to consider in recruiting and assigning reviewers:
- Subject matter knowledge – The type of review determines whether (and how much) subject matter knowledge is important. Basic background knowledge is generally enough for a responsiveness review. Issue review and deposition preparation on the other hand require deeper understanding. Little if any knowledge about the case is needed to conduct a privilege review.
- Deadlines – As a rule of thumb, the shorter the deadline, the more people you need on the review team.
- Data volume – Likewise the size of your review team will typically go up or down with the volume of data to be reviewed. However, this isn’t an absolute. If the production deadline is months away, a small team may be enough to work through even a large dataset.
- Availability – Availability can be the most difficult criterion to meet. Outside counsel and paralegals work on multiple matters at the same time. Since most in-house counsel are generalists, the competing demands on their time are even greater. Whether continuity in the review team matters depends on the purpose and expected duration of the review. A protracted substantive review will benefit greatly from reviewer continuity. A lawyer whose schedule is only open for the next few days can still be the right choice for deposition prep. Rotating staffing is appropriate for a privilege review.
- Billable rate and case budget – It’s widely estimated that review accounts for as much as 70% of the overall cost of discovery. The case budget and reviewers’ billable rates are important considerations, for obvious reasons.
A successful eDiscovery review project accomplishes three objectives. First, it satisfies the substantive review needs of the case. Second, it’s efficient to maximize value to the client. And third, it’s completed within budget.
Review can seem overwhelming at first. Data volumes are high, deadlines are short and budgets are tight. Start the project off right by setting clear goals and assembling the best review team. With thorough preparation and planning, you can make your eDiscovery review a success.
Helen Geib is General Counsel and Practice Support Consultant for QDiscovery. Prior to joining QDiscovery, Helen practiced law in the intellectual property litigation department of Barnes and Thornburg’s Indianapolis office where her responsibilities included managing large scale discovery and motion practice. She brings that experience and perspective to her work as an eDiscovery consultant. She also provides trial consulting services in civil and criminal cases. Helen has published articles on topics in eDiscovery and trial technology. She is a member of the bar of the State of Indiana and the US District Court for the Southern District of Indiana and a registered patent attorney.
This post is for general informational and educational purposes only. It is not intended as legal advice or to substitute for legal counsel, and does not create an attorney-client privilege.