By Bennett B. Borden, Monica McCarroll, Mark Cordover & Sam StricklandThe review of documents for responsiveness and privilege is widely perceived as the most expensive aspect of conducting litigation in the information age. Over the last several years, we have focused on determining why that is and how to fix it. We have found there are several factors that drive the costs of document review, all of which can be addressed with significant results. In this article, we move beyond costs and get to the real heart of the matter: document review is a "necessary evil" in the service of litigation, but its true value is rarely understood or realized in modern litigation.
It was not always so. When the Federal Rules of Civil Procedure were first promulgated in 1938, they established a framework from the common law with respect to which discovery took place. But there was no fundamental change in how one conducted discovery of the comparatively few paper documents that comprised the evidence in most civil cases. There was no Facebook or even email at the time. Only later, when the sheer number of paper documents grew to a point where litigators needed help to get through them, and only later still when the electronic creation of documents became possible and then ubiquitous, did the "problem" of information inflation convert document review into a separate aspect of litigation, and one that accounted for a significant portion of the cost of litigation. There are three primary factors that drive the cost of document review: the volume of documents to be reviewed, the quality of the documents, and the review process itself. The volume of documents to be reviewed will vary from case to case, but can be reduced significantly by experienced counsel who understands the sources of potentially relevant documents and how to target them narrowly. This requires the technological ability to navigate computer systems and data repositories as well as the legal ability to obtain agreement with opposing counsel, the court or the regulator to establish proportional, targeted, iterative discovery protocols that meet the needs of the case. Because of the important work of The Sedona Conference® and other similar organizations, these techniques are better understood, if not always widely practiced.2 At some point, however, a corpus of documents will be identified that requires careful analysis, and how that "review" is conducted is largely an issue of combining skillful technique with powerful technology. In order to take advantage of all of the benefits this technology can provide, the format of the documents, the data and metadata, must be of sufficient quality. When the format of production is "dirty" (i.e., inconsistent, incomplete, etc.), you face a situation of "garbage in/garbage out." For several reasons, "garbage" in this sense no longer suffices.
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