Critical Considerations for Document Review Projects

Successful eDiscovery document review project are characterized by both speed and accuracy.

The both/and is critical.

Speed without accuracy yields a host of problems, including further review, QC, and production costs - to say nothing of potential sanctions.

Accuracy without speed means potentially missing court-ordered deadlines - and if reviewers are moving at a fraction of an industry-acceptable pace, you're significantly overpaying for review work - already typically the most expensive part of the litigation cycle.

This post assumes you've been through Identification, Collection, and Processing. Below are critical considerations for your team's next project:

Create and Document Your Plan

These questions that should be answered before beginning your review:

• What search terms will assist us in finding the information? Should we utilize TAR?
  
  
• In what order/by what method should we prioritize documents for review?
  
  
• How many document review attorneys do we need to hit our deadline?
  
  
• Have we developed a clear and concise document review protocol?
  
  
• Who can reviewers contact if they have questions?
  
  
• How will the documents be QC’d once they’ve been reviewed?
  
  
• Do we have a Clawback Agreement in place?

Be Quick, But Don't Rush

Attorneys and clients need to take the time to understand the parameters of each project, and then plan, staff, and manage accordingly. Rushing a document review can result in over or under-designation of documents for confidentiality and privilege, incorrect responsiveness decisions, and missed production deadlines – discovery outcomes that courts do not look favorably upon. 

Sustainable Biofuels Solutions, LLC v. Tekgar, LLC and Michael Catto, C.A. No. 8741--VCP, Oral Argument on Plaintiff’s Motion to Compel and for Sanctions, Defendants’ Motion to Dismiss, and Rulings of the Court (January 28, 2014)

• Following a Motion to Compel and for Sanctions for untimely production of emails, blanket designation of 21,000 documents as “Attorneys Eyes Only”, and unilaterally changing agreed-upon search terms, Defendants’ counsel blamed their own clients for delaying document review efforts by waiting too long to hand over their electronically stored information
  
  
• For failing to comply with their discovery obligations, the Court sanctioned Defendants to the tune of $10,000 for attorneys’ fees and ordered re-review of all documents for proper confidentiality designation under strict deadlines.

Understand the Impact in the Courtroom

This section really indicates how the EDRM is an iterative, rather than linear process. Correctly executed identification and collection plays directly into the quality of review (and  subsequent production). Parties in, or reasonably anticipating, litigation must preserve evidence and produce relevant, non-privileged material. Attempts to hide relevant ESI can get you suspended or disbarred. And on the flip side of the coin, illegally obtained evidence that is reviewed and produced leads to just as poor of outcomes.

In re Eisenstein, 2016 BL 107979, Mo., No. SC95331, (April 5, 2016). 

• Attorney Joel Einstein represented a husband in a divorce proceeding; the husband frequently accessed his soon-to-be ex-wife’s personal emails without her permission and provided them to Einstein. One such document contained a list of direct examination questions the wife’s attorney had sent the wife prior to trial. 
  
  
• On the second day of trial, Einstein handed the wife’s attorney a stack of exhibits which included the direct examination questions.
  
  
• As a result, the wife’s attorney requested a conference with the trial judge and a hearing on the record. Both the husband and Einstein admitted accessing and viewing the improperly accessed documents and failing to disclose it to wife’s counsel.
  
  
• After the hearing, Einstein sent the wife’s attorney an email stating: “Rumor has it that you are quite the gossip…Be careful what you say. I’m not someone you really want to make a lifelong enemy of.”
  
  
• The Supreme Court of Missouri noted that Einstein had previously undergone 5 disciplinary proceedings prior to this one, and suspended him for six months.

Open The Lines of Communication

Communication between outside counsel, clients, vendors, and contract attorneys is an essential component of every successful document review. Below are some communication-related suggestions from a long-time project manager:

• Outside counsel and project managers should do their best to ensure every document reviewer has the tools they need to accomplish the job. This includes the basics of competent hardware and software, pre-project training, and procedures for quick communication and issue resolution
  
  
• Encourage collaboration and create opportunities for interaction between reviewers and project managers. When practical, have document reviewers work in the same room at the same time. This is certainly a challenge in a post-COVID world, which makes digital project management and communication tools that keep everyone "on the same page" even more critical
  
  
• Maintain a whiteboard to flesh out legal concepts and aid in reviewer decision-making. Seek reviewer buy-in on coding decisions
  
  
• Once the review has commenced, review the agreed-upon coding palette with counsel; potentially eliminate or merge previous tags
  
  
• Schedule conference calls with counsel to address reviewer questions and concerns
  
  
• Provide frequent feedback to reviewers on their accuracy and review rate
  
  
• Alert the entire team of pending deadlines and review milestones
  
  

Get It Right The First Time

Clarity now leads to cost efficiencies later. The larger your document review team, the more likely it is that the review will be susceptible to coding inconsistencies - intelligent, reasonable, well-trained attorneys can come to different conclusions when it comes to coding ESI. Delivering a consistently coded and defensible document production requires: discussing documents that are likely to cause confusion and disagreement and publicizing an approved methodology for dealing with them.

An attorney’s review rate is an important metric, but review rate alone means nothing if the end product is a hastily thrown-together and terribly inconsistent document production.

Successful eDiscovery document review project are characterized by both speed and accuracy.

The both/and is critical.

Speed without accuracy yields a host of problems, including further review, QC, and production costs - to say nothing of potential sanctions.

Accuracy without speed means potentially missing court-ordered deadlines - and if reviewers are moving at a fraction of an industry-acceptable pace, you're significantly overpaying for review work - already typically the most expensive part of the litigation cycle.

A review team’s ability and willingness to identify, discuss, and resolve critical coding decisions as soon as possible ultimately is what produces a successful project. It should go without saying that this also requires buy-in from the ultimate decision makers – usually a partner or senior associate assigned to the review.

Ultimately, the partner you select for this project will have the biggest impact on the work product - and your experience along the way. With so much to consider, your due diligence should go beyond what the review shop is charging per hour or per document. Ensure the experience, expertise, and communication you'll need are part of the engagement.