Take Away: In Part 3 of our look at a recent publication from the Sedona Conference titled “Commentary on Achieving Quality in the E-Discovery Process”, we look at the recommended ways quality control measures could be implemented at each step in the E-discovery process.
In Part 2 of our look at the Sedona Conference’s Commentary on Achieving Quality in the E-Discovery Process we looked at why quality control is important, and the various ways quality can be measured in any process. In this final part, we’re getting down to the nitty-gritty, Sedona’s recommendations on specific ways we can apply quality controls in E-discovery.
Of course, before we even begin to look at the details, we have to go back to the very first paragraph of this commentary:
“Such collective measures, drawn from a wide variety of scientific and management disciplines, are intended only as an entry-point for further discussion, rather than any type of all-inclusive checklist or cookie-cutter solution to all e-discovery issues.”
As much as we might like there to be a cookie-cutter approach to electronic discovery, there isn’t one. The details of each case will determine how complicated and thorough your E-discovery process needs to be. It’s still going to take some expertise to develop and carry out the process for each case to ensure that we are maintaining that standard of reasonableness without creating an overly burdensome process when compared to the worth of a civil case.
That being said, let’s look at the first area where we can apply quality control measures, the data collection phase. Traditionally, discovery was accomplished by identifying the key custodians, and asking them to gather all their documents into boxes that were copied and sent off to the legal team to review for relevance and privilege. In some cases, they might be asked to collect only documents related to certain clients, or transactions, but overall the concept was pretty simple. In today’s high-tech age, while the overall idea hasn’t changed, the mechanisms for collecting and the overall volume of documents are drastically different. It’s no longer a matter of going through the filing cabinet, now you often have to get IT and other business areas involved in order to determine all of the possible locations of data, and how best to access them.
This is an area where everyone involved is still adjusting. Legal departments and law firms are not used to having to go to IT to figure out where data is stored, and IT is not used to being asked by the legal team to get involved in preserving and collecting ESI. In time this may improve, but in the mean time, Sedona recommends some basic keys to reasonable data collection, including chain of custody tracking, and documentation. Both of these things should account for all of the ESI collected, (as well as that not collected), demonstrating how it was collected, where it came from, who it belonged to, what filtering techniques were used and where it was sent for review. Good documentation in the collection phase can avoid many of the disputes that arise later on in the production phase about the completeness of a given document production. It can also help with the review phase, as proper identification of the volume and types of ESI will need to be reviewed can help decide the appropriate review process.
Then, of course, in the review process there is ample opportunity to apply some quality control measures. Again, documentation comes to the forefront, as you must decide and clearly communicate to the entire review team what your responsiveness and privilege criteria are before the process even begins. Then, an attorney, where appropriate, may have to sample the review team’s work to make sure those criteria are being followed. You’ll also want to clearly document when you might have used automated processes, such as a search for an attorney’s email address, to eliminate documents from human privilege review, how those processes were carried out, and what the results were.
Also, communication is critical, or as the commentary refers to it, “knowledge transfer.” There shouldn’t be any secrets about how this process is being handled. Nor should the design of the process be undertaken without appropriate input from everyone involved in the matter, including key players, those involved in preserving, collecting, reviewing, and redacting the ESI, in-house counsel, and trial counsel. Those familiar with the documents and the make up of what is to be reviewed should share that knowledge with the reviewers, who should be passing along the knowledge they acquire during the review to the senior managers and trial team. There should be a very easy to follow process in place to facilitate this knowledge transfer.
Lastly, in the production phase, you may want to consider some sampling. For example, one suggestion is to have a senior attorney review a sample of the data coded by the reviewers to make sure the proper criteria were used to determine responsiveness and privilege before creating your production sets. Where appropriate, another sampling of the production set data could be performed as a last pass review of before it goes out the door. Lot’s of other possibilities exist – and E-Discovery knowledgeable trial counsel are best positioned to recommend the right approach for a particular case. The Sedona Commentary is a great place to start generating ideas for a defensible, well documented quality control process.
You can download your own copy of the Commentary from the Sedona website.