Is Discovery Being Managed Properly? Document Review.

Is Discovery Being Managed Properly? Document Review.

The seventh in a series of articles about how to reduce litigation costs while getting better results.  The following is adapted from Chapter III.B.3 of Bensen & Myers on Litigation Management.

To streamline the process and minimize the disruption of business, Document Collection procedures will typically allow for some over collection of documents to reduce the need for collectors to spend time on site analyzing the relevance of particular documents and avoid the need to return to a client's facilities for additional collection.  The idea is to collect broadly (within reason) and then more closely analyze documents off site (i.e., at Outside Counsel's office).  It is also true that even under the most precise collection procedures, many documents will be collected that at first blush appeared responsive, but upon further reflection, are not.  Outside Counsel will frequently find that documents received from an opponent have been "over collected" as well, that is, that the received production contains a significant amount of nonresponsive or technically responsive, but insignificant, documents.  

That over collection is corrected during the Document Review phase where Outside Counsel has the opportunity to subject the company's documents to closer scrutiny before deciding which to produce and which to hold back.  The Document Review phase also permits Outside Counsel to determine the significance of individual documents.  During this process, each collected and received document will be carefully reviewed to distill pertinent information, facilitate organization and, in the case of collected documents, to make an informed decision as to whether to produce the document, withhold it as nonresponsive or tentatively withhold it pending a closer privilege review.  While there are no specific court rules governing the manner in which the document production process should be conducted, it is generally governed by the federal rules concerning a party's duty of disclosure (Fed. R. Civ. P. 26), the production of documents (Fed. R. Civ. P. 34), and sanctions for failure to make disclosure or cooperate in discovery (Fed. R. Civ. P. 37).    

A sound document review strategy is necessary to a cost effective review and will generally require the following steps:

  1. Providing reviewers with the pertinent facts of the case and an analysis of legal issues to help them evaluate the significance of individual documents.
  2. Providing reviewers with the names of the individuals likely to be identified on the document and such individuals' positions with attorneys' names being highlighted in some manner to help identify potentially privileged documents.
  3. Providing reviewers with a glossary of terms to assist them in understanding the substance of the document.
  4. Setting up a coding system that permits reviewers to capture needed information with a minimal about of effort. For example, permitting reviewers to select the relevance of a document from a preset list alleviates the need for them to separately write out a description. Such standardization also facilitates later organization and retrieval of significant documents.
  5. Providing reviewers with instructions for coding the documents that explain not only the technical aspects (logging on to the system, saving changes, etc.), but also the definitional aspects of the preset choices that the review process utilizes.

Although the documents are derived from different sources, the criteria that reviewers use on the production side to categorize documents and to distinguish the responsive from the nonresponsive is largely the same as the criteria used on the receiving side to categorize the documents and distinguish the useful from not useful.  Thus, in a proper system, reviewers familiar with the coding system used to review documents for production should be well qualified to review incoming documents with little additional training. The significant difference between reviewing collected documents and reviewing received documents is that privilege is an issue when producing documents and typically not an issue when receiving documents.  Privilege review will be addressed in our next article.

Lastly, it should be noted that many practitioners overlook the significance of the document review process, viewing its sole purpose to be finding "hot documents" when reviewing their opponent's documents and making sure that privileged documents are not produced when reviewing their client's documents.  Both of those functions are critical, but if approached in the proper manner, the document review process can also be an excellent opportunity to, among other things, gather and organize valuable information, pull together all of the parties' "stories" of the case, and develop detailed support for claims and defenses.

The tools needed to effectively manage the document review process along with concrete methodologies and tools to address case evaluation, budgeting, the decision to bring suit, whether and when to settle, staffing issues, document collection and production, privilege review, trial preparation and other facets of the litigation process are provided in Bensen & Myers on Litigation Management.

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