Maximizing the Value of Your Work Product
At one time, the goal of a document review was simply to code all of the documents and to furnish the production to the opposing party. Over time, document review management has grown more sophisticated and law firms are beginning to recognize the value that can be passed along to clients by running an efficient review. Litigants themselves are also becoming more involved in the management of a review and should demand that the information and knowledge gleaned through the often-expensive review process should not only result in a quality production but should also reduce the time investment required of the core litigation team.
This goal can be achieved through the use of some key “best practices,” such as:
- Maintain a list of the most important or “hot” documents that surface during review so the case team can readily identify, refer to, and incorporate them into deposition preparation, motion practice and trial.
- Maintain an evolving collection of daily observation logs and summaries of interesting documents.
- Review daily logs to identify important themes and flesh out key words or people not previously identified as relevant to the litigation.
- Leverage technologies, such as Case Map, to map out key themes, witness participation and timelines.
- In the typical law firm, relevant fact development is handled by associates charging rates of three to five times that of dedicated document review attorneys. Assess whether your firm or staffing service can offer qualified, dedicated review teams at a fraction of typical associate rates, and explore how they plan to ensure the maximum use of the work product coming from their team.
A Better Approach to Data Reduction
Clearly, efforts to reduce data sets prior to review can generate substantial savings. Two ways to reduce volume include: 1) effectively removing duplicate documents (a.k.a. “deduplicating”) and 2) extracting clearly irrelevant documents through the use of analytics.
Efforts to reduce data sets prior to review have traditionally been limited to de-NISTing (a process that removes files with no evidentiary value, like system files) and deduplication within a single custodian. More recently, litigants have begun to embrace the efficiencies offered by global deduplication, a process that results in only one copy of a document in the review set.[i] Some of the concerns with this approach harbored by the proponents of single custodian deduplication are addressed by the custodian tracking and reporting features that can be leveraged or designed in many review tools through close collaboration between discovery counsel and the vendor. These techniques can preserve the full range of custodian and source information for each document in a searchable format. The practice tips below offer suggestions for making the most of these features.
- In conjunction with global deduplication, ask your vendor to create a “duplicate custodian” field to list every custodian who had a copy of the document in their data set. This preserves the association of every custodian with the document and reduces the review set to a single instance of each duplicate document. If needed, you can produce this field in the metadata, which can help facilitate custodian-based productions.
- When rolling productions are necessary, consider producing a final overlay load file that updates the additional custodian field for data that is processed after initial productions have been made.
Most collected data contain groups of documents that are clearly irrelevant to the discovery requests, or even the litigation generally. Isolating these documents and removing them from the review set will save significant time and money. Data analytics offers a variety of techniques to cull irrelevant material and streamline document review.[ii] In many instances, technologies with sophisticated analytics may charge a higher up-front price than competing technologies lacking these features; however, with strategic use of the technology, this cost is more than justified by the savings realized by avoiding the unnecessary review and hosting of irrelevant documents.
- Use analytics—including domain analysis (i.e., the part of the e-mail address following the “@”), content clustering, and strategic iterative searching—to identify and remove irrelevant spam and junk e-mails.
- Review vendor statistics on the cost savings that may be realized through use of a tool’s data analytics features. [iii]
- Ensure that you fully understand and that the vendor can articulate the processes involved with their data analytics capabilities. This may be important if the court or opposing party requires an explanation on the search methodologies employed.
A Better Approach to Search Term Development
Well-planned and well-executed searches result in major cost and time savings, and may also be necessary to ensure compliance with legal requirements and production deadlines.[iv] Lawyers are expected to develop reasonable strategies for searching, either through development of their own expertise or reliance on experts.[v] Defensible searches often require not only knowledge of the subject matter of the case but also an understanding of how available technology can best be leveraged to ensure accuracy and efficiency in the discovery process.[vi]
In most cases, search terms are developed by lawyers using their knowledge of the matter, and information gathered during client interviews. These terms are then run through the document set by a vendor who produces a “hit report,” reflecting the number of documents captured by each term. Based only on the vendor’s report, a case team may modify or exclude terms that appear to be resulting in too many or too few hits.
This approach may suffice in matters that are particularly well-suited to search terms. However, in larger and complicated cases, an iterative approach to search terms may produce better results. [vii] This strategy may result in a smaller, more relevance-rich data set to review.[viii] When developing search terms:
- Keep in mind that you may be called on to discuss and defend not only your search terms, but also the process by which you chose them.
- Leverage interviews with key document custodians to identify likely terms and acronyms.[ix]
- Assess search term syntax to ensure that the vendor is employing the best search construction techniques.[x]
- Select review platforms that allow for iterative search term analysis, evaluating capabilities against cost.[xi]
- Review sample sets to adjust search terms accurately. Grouping documents using near duplicate analysis,[xii] e-mail threading[xiii] and concept clustering[xiv] will make this process more efficient and effective.
- Assess terms that result in excessive hits in order to tighten up searches and isolate pockets of irrelevant material.
A Better Approach to Review Batching
Review managers often create review batches of documents by custodian. However, this method of “batching” can be inefficient and may contribute to inconsistent review results. For example, a reviewer may code a portion of an e-mail chain in Custodian A’s batch one way, and another reviewer may view Custodian B’s portion of the same e-mail chain and code it another. Custodian-based review is also often a slower process, as two or more reviewers will need time to come up to speed on the same underlying subject matter.
- Consider grouping documents for review according to subject matter. Documents can be grouped by subject line (for e-mails), by concept, by file name (or path), or by leveraging predictive coding technologies,[xv] when available, to suggest likely treatment of documents. Grouping of documents by subject matter helps to ensure that similar documents are treated consistently, and also speeds the review process by allowing a single team member (or designated members) to handle documents relating to a specific subject matter.
- If batching by e-mail subject line, confirm that attachments properly follow the parent e-mail. Some vendor technologies are challenged by alternative batching requests.
A Better Approach to Technology Selection and Vendor Management
A key to effective discovery is pairing the right discovery vendor and technology with the data set and litigation goals. Understanding the available financial and human resources, as well as the macro- and micro-goals of the review, is critical to making an informed decision.[xvi]
Follow these practice tips to avoid common pitfalls:
- When evaluating vendors, determine whether the data will be hosted domestically or in an offshore location, as there are data privacy, legal ethics and quality control issues to consider. If the data will be in the United States, ask for specifics about the storage environment (physical and virtual).[xvii]
- Review closely and negotiate, if necessary, the limited liability, system maintenance, and other provisions of the services agreement. Inquire specifically about the vendor’s policies on backing-up and storing the data, given the risks associated with maintaining data in multiple locations over which you have little control.
- Explore alternative fee arrangements or billing cycles that may result in discounts or cost savings. To provide more predictability in costs, vendors may offer a flat fee for a defined project or charge an all-in flat rate on a per-document basis (versus separate charges for processing and hosting on a per-gigabyte basis). Hourly pricing for productions may also generate savings over a traditional per-page approach to tiffing, OCR, stamping and endorsements.
- When comparing costs in matters requiring significant lawyer review, be sure to factor in the cost of both the technology and the review. Very often, more expensive technologies pay for themselves by reducing the lawyer time spent on review. For example, using a “concept clustering” feature to group documents that relate to a similar topic can accelerate review and enhance consistency.
- Keep in mind the planned or agreed production specifications when selecting your vendor.[xviii] For example, you may want to assess the vendor’s capabilities and pricing for a native format or repository productions.
- If potentially relevant data is housed in a structured database[xix] (e.g., an Oracle-based financial system), ask prospective vendors if they have the technical expertise required to query and potentially extract the data.[xx] This tip applies to all types of uncommon, complex or customized data sources.
- Once a matter is fully resolved, it is important to instruct the vendor to dispose of the litigation data unless it is subject to preservation requirements or use in other litigation. Stale litigation data hosted by discovery vendors can generate both cost and risk in future litigations. On the other hand, if you are a repeat litigant, there may be great economies generated through strategically repurposing work product. Discovery counsel can be a great source of strategic advice on these topics.
A Better Approach to Review Staffing
One of the most important strategic decisions in the early stages of document review involves choosing a review team, and review team management, that is well-matched to the specific matter.[xxi] Often, document review projects are staffed by contract attorney agencies on a project-by-project basis. The document review team is usually released at the end of the project, and may or may not work on another matter for that agency, firm or client. Great efficiencies may be lost through this approach if you are a repeat litigant. Speed and accuracy both increase with an informed review team; maintaining a team comfortable with your business, and perhaps even your frequent “key players,” can result in significant review cost savings.
- If you are a frequent litigant, consider identifying a preferred review provider, and negotiate with that provider for “bulk” pricing and a dedicated review team. Your team will soon become familiar with company document types, acronyms, business processes and your corporate structure. This institutional knowledge not only increases efficiency but also dramatically improves the accuracy of the review.
- When using advanced analytic tools, be sure to use personnel well-versed and experienced in the tool and its analytics. Unfortunately, companies may invest in an advanced technology but then fail to invest in personnel familiar with and capable of effectively deploying the advanced features of the tools.
A Better Approach to Supervising Offshore Reviews
Offshore document reviews are attractive to certain clients principally due to the low rates charged by offshore legal outsourcing providers, particularly for large, document-intensive litigations. However, in order to reap the benefit of the offshore rates while avoiding many of the risks associated with offshore review, it is necessary to plan a cost-effective and defensible U.S.-based supervision strategy. Data security, privacy, confidentiality and quality control may be at risk when all or part of the review is conducted offshore unless thoughtful measures are taken up front. Though applicable to many discovery tasks, the proverbial “ounce of prevention” is especially important when conducting a review outside the United States.
It is not only “best practice” to supervise an offshore review team, but it is also a lawyer’s ethical obligation. U.S.-barred lawyers are ethically required to provide adequate and direct supervision of the offshore work, to communicate appropriate disclosures to the client and to ensure the use of reasonable billing practices.[xxii]
Suggestions for managing a defensible offshore review include:
- Implementing a protocol to facilitate timely and effective communication between the review team, the U.S.-based manager and the case team.
- Providing adequate U.S.-based training calls and materials.
- Addressing the tendency of many offshore review teams to apply a “black-or-white” approach to document analysis.
- Instructing the team on U.S. privilege issues, which may be new legal concepts to foreign-trained lawyers.
- Generating a daily Q&A log, via which reviewers may submit questions and receive timely feedback from the case team.
- Implementing a protocol to facilitate regular and targeted quality checks.
- Validating privilege logs to ensure that a basis for privilege exists for each entry under the laws of the applicable jurisdiction.
The discovery and document review process can be complicated, expensive and time-consuming. When document review is strategically managed, however, and the right technology is employed, discovery can be streamlined and leveraged to generate vital and lasting litigation value.