The review of ESI remains the single most expensive phase of the discovery process. This is especially true if parts of the review have to be redone because of errors. But beyond cost, poor document review risks blown deadlines with the possibility of court sanctions, embarrassing clawbacks, loss of credibility, and angry clients.
Following are nine keys for counsel to consider to ensure efficient, defensible, and cost-effective review. Keys that TCDI has learned from dozens of review projects.
1. Upfront Organization
Most problems can be avoided before the review begins, and as with most situations in law, starting earlier than you think really helps. It is critical for counsel to create a comprehensive review guideline or protocol and to review it in detail with the review provider as early as possible.
Review protocols often tend to the what and the why of the review, but the how is vital. So, while counsel may rightly prioritize issue tagging and privilege, a good review provider will identify issues around workflow, staffing, timing, and cost. Assuming document review is a simple and repeatable process is often the first step toward failure.
2. A Review Provider that Offers Value Add
It is beneficial to find a review provider who does not just blindly execute instructions, but one who advises, adds value, and can foresee problems.
Small issues like an overlooked tag for PII or confidentiality (something we see quite frequently) or changing your mind about details halfway through the review can be expensive and time-consuming to fix. Consulting with a knowledgeable review provider can help minimize these instances and provide for a smoother review experience.
Also, take advantage of your review providers’ eDiscovery expertise to see, for example, if the volume of documents can be reduced further. No matter how competent your law firm’s litigation support, a provider like TCDI does much more than review and will gladly brainstorm about ways to make the review more defensible and efficient.
3. Using Culling and Analytics Before and During Review
Have techniques like threading, clustering, deduping, and predictive coding/active learning been considered and effectively used to prioritize and organize documents and to remove junk data from the review set? TCDI has learned through surveys and experience that these techniques are often underused or poorly applied. Applying them is still more of an art form than a science, so it is beneficial to use these tools to their fullest capabilities.
Additionally, batching (or grouping) similar or related documents together so specific reviewers code similar documents speeds up the review. While this may be obvious to some, we often see this aspect of the process overlooked.
4. Briefing Reviewers on the Issues Live
While summarizing the facts and legal issues in the protocol can be enough for some reviews, TCDI finds that a live session where counsel briefs the review team increases accuracy and engages the reviewers.
Don’t forget that document reviewers are attorneys who get excited by the legal issues. For some team members, this may be an introduction to the type of law or concepts involved in the case. A live briefing with the team will afford the team a chance to ask questions and level set expectations before getting started. It also makes the team feel connected with the client and outside counsel, which makes for a more collaborative and engaging experience.
5. Coding Panels and Coding by Family
We often see a preference for coding documents at a family level because it seems quicker, but this can cause errors and include too many irrelevant documents. Work with your review provider to determine whether you should be coding the documents on their face or on a family level, which will be a judgment call based on various factors.
Additionally, it is helpful to set up customized coding layouts – meaning the screen the reviewer looks at in the review database to code the document – so they contain only what matters. Having different layouts for different functions, for example, first-level relevance review, quality control, or privilege review is crucial to make sure only essential fields are coded.
6. Communication Protocol
Create a communication protocol between the parties that states who will communicate to whom about what and when. A protocol is much more than a distribution list. Timely counsel and client responses to questions or issues flagged by the review project manager are key so that errors don’t mount.
Most reviews now include numerous stakeholders, which may be corporate clients, outside counsel, their litigation support of other discovery resources, and the review provider. Clarity about communication roles, paths, and response times is invaluable. Coordination among all teams involved is also crucial so the teams can work together throughout the review seamlessly.
7. QC Early and QC Often
It’s very important to implement a rigorous quality control process for the various coding decisions the reviewers make and to do this as early as possible.
The coding calls made early in the review, when the team is first acclimated to the case, are those most likely to be in error. If you leave QC for too late in the project, and there are inaccurate relevance calls, the volume of documents needing correction will mount up through the document set, leading to additional time and cost.
8. Reporting and Metrics
Agree early on about the type of metrics and reports desired, what should they contain, and how often they should be distributed. Each stakeholder has different needs. For example, the ultimate corporate client might be most interested in spend tracking, outside counsel in the time to completion, and others focused on more granular issues like reviewer or coding metrics.
Reporting is not merely administrative, or just to keep an audit trail in case of disputes. The right kind of reporting drives early warning of issues around cost, accuracy, staffing levels, or timeline that may require quick course corrections.
Are redactions for privilege, PII, confidentiality, etc. needed? Redactions require an often technically demanding and time-consuming final phase of review prior to the creation of a production set. Applying redactions to files is notoriously finicky, so make sure you consider how you are going to handle them early in the process.
Being aware of these nine keys can help your team avoid many of the most common problems in document review.
Overall, don’t underestimate the complexity and risks of modern document review. Taking care and time to select an experienced, sophisticated review provider to assist with your needs will help ensure the entire process will be seamless and cost effective.