What is eDiscovery Document Review?

eDiscovery document review is a crucial stage of the eDiscovery process where you examine the gathered documents to determine if they are privileged, responsive, or relevant to a legal matter. This process involves identifying and separating relevant data from irrelevant ones to uncover evidence that could help with the case strategy. However, there are certain pitfalls to address, and if you fail to manage them properly, it can jeopardize your case. This is the stage before production, where you have to provide discovery to the opposing counsel. Apart from litigation, eDiscovery review is a crucial stage for regulatory investigations, due diligence assessments, subpoenas, third-party requests, and internal investigations.

Why is Document Review Expensive and Risky?

Why is document review the most expensive part of the eDiscovery process? We live in a modern digital world. More and more companies are working remotely, which creates more data to be preserved. During review, any of these documents or information in the data can be pivotal to influencing a case. Your findings are capable of making or breaking your case. In the past, there have been some cases that truly demonstrate the power of eDiscovery, like the antitrust trial of the United States vs. Microsoft, which began in the late 90s. The key contention of the case was that Microsoft had been conspiring against Sun Microsystems. During the document review process, an email from Bill Gates surfaced in which he asked about what they wanted Apple to do in order to undermine Sun Microsystems. This email became the smoking gun of the case.

There are also dangers inherent in the document review process. One of the best examples of this danger is the Samsung vs. Apple case. During the document review, the outside counsel for Samsung didn’t redact a sensitive Apple contract properly. This contract was under a protective order, meaning its use in the litigation was limited. This contract was then uploaded to the internal intranet of Samsung, after which it went viral. The company faced sanctions after Apple found out about this blunder.

As you can see, the process of eDiscovery review is risky. This is not the stage where you want to cut corners or hold out on time and resources.

Who is Involved in Document Review?

In the case of corporate litigations, eDiscovery document review is usually handled by outside counsel. This is a time-consuming process that requires a lot of resources. Your internal legal department might not have enough resources to handle the process.

Moreover, electronic discovery review is more than just finding the relevant documents. It includes developing a case strategy, which is usually under the purview of the outside counsel that will be representing the corporation. So, it makes sense to make them lead the eDiscovery review efforts as well.

Some companies choose to conduct document reviews in-house. This is usually a first-pass review where the in-house attorneys quickly determine whether or not a document is relevant. This helps winnow down the document set and guide the subsequent steps. In only rare cases do they do a deep dive into the contents of documents and explore relevance.

Why is an Electronic Discovery Document Review Important?

Am Law 200 Firm Reduces Document Review Time by Over 90%

As an Enterprise Grid member, you must assign the Compliance Admin system role to someone. This person will have the power to place a legal hold on the members of the organization so that their files and messages are preserved in Slack. While creating the Slack legal hold, here is what you can expect:

  • You may include the file data and messages from all the conversations or only the direct messages that include a particular member
  • Once the legal hold is in place, all the files and messages related to the members will be saved, regardless of the retention policies or if members delete or edit their data
  • You can access the data subject to the hold using an eDiscovery software
  • If a channel subject to legal hold gets deleted, files and messages won’t be saved
  • Files and messages from direct messages or Slack Connect channels are not covered under the Slack legal hold

Document Review Process

The document review process is conducted by a team that comprises different levels of attorneys along with other legal professionals. You must take a systematic approach that takes the following considerations into account:

Section Image

Before you conduct an effective eDiscovery document review, it is important to get an understanding of the issues pertaining to the case. This includes names, date ranges, and keywords you will look out for, while examining the documents.

Underlying Case Information

Section Image

Apart from understanding the facts, you also must understand what your desired outcome is. The facts have to tell a story, hopefully in your favor. The document review process might reveal patterns that might force you to get a settlement or opt for a more aggressive approach.

Case Strategy

Section Image

Consistency is crucial for eDiscovery review. You must have a set of labels and tags that you apply to the documents, or else it will be impossible to organize the reviewed documents. There are different ways to tag the documents. You can either go for a simple approach where you tag the document as privileged, relevant , or non-relevant or you can go for a more detailed one where you tag the documents as favorable, unfavorable, neutral, and smoking gun. This way, all members of your review team will understand the system. With an eDiscovery software like Casepoint, you will get a detailed assessment of the tagging or coding performed during the review.

Document Tagging

Section Image

When conducting an eDiscovery document review, thoroughness and accuracy are important. But speed is important as well. You will be paying the reviewers on an hourly basis. So, in the case of a large review project, it can cost you hundreds of thousands of dollars. You must set expectations regarding the number of documents the review team must get through in an hour. It is crucial to track these numbers as well and address any productivity issues.

Efficiency

Section Image

Even the most experienced and skilled reviewers are going to make mistakes. You have to implement quality control measures in order to prevent these mistakes. This involves having a system where review teams are responsible for different levels of review so that they can verify the accuracy of the electronic discovery review.

Quality Control

Document Review Issues to be Considered

The process for changing or releasing a legal hold is similar to the one mentioned above. After you have clicked the Ellipsis icon, you will find the option to edit or release the legal hold.

Determining Search Terms to be Employed

One of the most important considerations of the eDiscovery document review process is employing search terms. This is an iterative process where you refine your search throughout the e discovery review process. After creating an initial search terms list, you can review the documents returned using these search terms. If many irrelevant documents are returned, it means that you are experiencing noise. This is known as the “false positive” search results. In such cases, you have to tweak, refine, and optimize your search criteria to get the desired results.

If you are getting too many irrelevant documents, you must narrow your search terms, and if you are getting too few relevant documents, you must broaden your terms. Here are a few tips and tricks that will help you determine the right search terms.

  • Try misspellings
  • Look for jargon and code words
  • Use connectors to get refined searches (Boolean logic)
  • Use the word in its root form or expand it using stemming options
  • Don’t use stop words

Document Review Quality Control

At every stage of the eDiscovery document review process, you must conduct your due diligence and quality control. This will ensure that the document designation is accurate and consistent. One of the most important considerations is tagging documents for further e discovery review. If you are using a software to handle eDiscovery review, make sure that it can implement quality control restrictions such as grouping families of documents and identifying duplicate documents. 

For proper quality control, you must have a second-level review by senior lawyers who review the team’s coding at random to check for inconsistencies. Then, they can provide feedback to improve spot issues and quality.

Protecting Privilege During Discovery

Failure to protect your privileged documents can ruin your case. If they are produced to the opposing counsel, it is possible that privilege would be waived. You might demand that the documents be returned to you and stricken from the record. However, you can’t unring a bell. So, if the opposing counsel has seen the document, they will try to use this information in any way possible.

As per the work product doctrine, records such as documents prepared by the attorney, client, or agent of either party are protected. In the case of attorney-client privilege, the communications between a client and an attorney are protected. To review for privilege, you have to use search terms that will help identify privileged documents. Here are some search terms you can give a try:

  • Terms and legal jargon like interrogatory, subpoena, and deposition
  • Email addresses for outside as well as in-house counsel, paralegals, and any other legal staff
  • Name and domains of the legal team

All the members of the review team must have a list of topics and people that might involve privilege. A discovery agreement should be made beforehand that ensures the return of inadvertently produced privileged documents. You can seek out rule 502(d), which protects against waiving privilege through inadvertent disclosure.

Forms of Production

A document or an email that you see on your screen only shows a part of the available information and data. When you are legally obligated to produce the data, you have to choose a suitable form of production that ensures that the content is delivered without destroying any associated and hidden information, such as metadata. To figure out the right form of production, here are a few questions you need to consider:

  • Is the integrity of metadata, change logs, and header files maintained?
  • Will you be able to search and sort through the data?
  • Is the relationship between attachments and messages preserved?
  • Does the method facilitate the redaction of confidential and privileged content?
  • Can you identify and sequence produced data with a system like Bates numbering?

eDiscovery Documents Review Checklist

A document or an email that you see on your screen only shows a part of the available information and data. When you are legally obligated to produce the data, you have to choose a suitable form of production that ensures that the content is delivered without destroying any associated and hidden information, such as metadata. To figure out the right form of production, here are a few questions you need to consider:

  • Is the integrity of metadata, change logs, and header files maintained?
  • Will you be able to search and sort through the data?
  • Is the relationship between attachments and messages preserved?
  • Does the method facilitate the redaction of confidential and privileged content?
  • Can you identify and sequence produced data with a system like Bates numbering?
Section Image

By narrowing down the amount of collected data, you can ease the work of the reviewers.

Narrow Data Volumes Prior to Review

Section Image

As per the principle of proportionality, the costs of eDiscovery should be in line with the case’s value. In the case of a non-cooperative litigant, the eDiscovery requests and the resulting costs might increase. You must estimate the electronic discovery review costs based on potential data volumes and hourly fees.

Leverage Proportionality

Section Image

For privilege reviews, you have to invest more time and attention. It is usually conducted by experienced attorneys, meaning that it will be more expensive than the “first-pass review”. Even with the Federal Rule of Evidence 502 (d), you cannot ignore privilege reviews. Consider this as more of a safety net.

Privilege Non-waiver

Section Image

You should not just hand over the electronic discovery review project to the outside counsel and wait for the bill. This is a collaborative project that requires frequent status checks and communication.

Collaborate With the Review Team

eDiscovery Review Software

Thanks to technological advancements, eDiscovery document review no longer involves someone manually inspecting every single document. Today, you can opt for an analytics-based approach where a computer determines the relevancy of a document. Casepoint offers CaseAssist technology for advanced analytics. Using this, you can identify key documents as well as non-relevant documents for culling large datasets. 

At first, the eDiscovery technology assisted review (TAR) primarily consisted of predictive coding algorithms. Even though it is still used, TAR now also incorporates Artificial Intelligence. Casepoint comes with a built-in AI that can manage cases of any size. Through its TAR, you can have multiple reviewers working simultaneously on creating a strong case strategy.

It enables the eDiscovery review software to provide a wide range of features, such as:

Section Image

After uploading the documents into the software, you can use specific keywords or even concepts to run searches and find relevant documents quicker.

Search Filtering

Section Image

The software should allow you to redact certain words or passages from the document. Some software also offers auto-redaction features that redact all instances of a phrase or word automatically.

Redacting

Section Image

The electronic discovery review set should be broken down into batches for each reviewer. Some eDiscovery software does this automatically after the review set has been imported. Casepoint uses an automated review batch workflow to divide documents into batches that can be easily managed.

Batching

Section Image

Both parties involved in the litigation must be able to reference specific documents easily. For this, you need the Bates numbering feature that attaches a unique identifier to every document and/or page. Some review platforms automatically assign the Bates number to expedite the identification and retrieval of documents.

Bates Numbering / Stamping

Conclusion

Electronic discovery review is one of the most expensive stages of eDiscovery. You need to find a way to reduce these costs. Outsourcing everything might not be the most suitable option as it is expensive and you have to rely on the timelines of another company. With a cloud-based eDiscovery software like Casepoint, you can ease the burden on your in-house legal team. It requires minimal training and offers huge security and cost-savings benefits. With Casepoint, an end-to-end legal discovery platform, you will have simplicity and security, along with cloud-based collaboration for your reviewers.