Editor: Our title references quality. How do you define quality in e-discovery?
Barrasso : A quality discovery process is accurate, defensible, punctual, cost-effective, and properly and efficiently managed. We achieve these controls by helping clients to develop and implement a plan that guarantees quality e-discovery.
Editor: Corporate counsel frequently complain about discovery costs. What can be done to control costs?
Barrasso: The trick is maintaining or improving quality while minimizing costs. Nothing is more expensive than a botched discovery, and opportunities to reduce costs and improve quality abound at every juncture, from collection through review to production.
With that said, opportunities for cost containment are present long before discovery begins. The pervasiveness of office computers means that companies have many times the number of documents they had only a few years ago. The cost and convenience of electronic data creation and storage is so low compared to that of paper storage that employees have not had compelling reasons to limit and discard documents. For example, a few years ago, only the final copy of an executed contract would be retained in a file drawer. Now, numerous employees may each have outdated contract drafts in their e-mail inbox.
When companies get hit with sanctions or adverse inference orders, it's often because they failed to properly preserve documents in anticipation of litigation. This is extremely important, and every law department should be working hard to lock this down. A properly executed document preservation plan is a good step. It will anticipate all of the areas where documents reside as well as help manage the tools and procedures the company uses that might influence creation or destruction of pertinent information.
So, a good, enforced document retention and records management policy will result in an overall reduction in retained documents, a more accurate and timely collection, and is one way a company can improve its preservation. Accordingly, there is a commensurate reduction in discovery costs and exposure.
Editor: What about within the document collection process? Can that be managed to control costs without sacrificing quality?
Barrasso: Yes. We have developed numerous approaches. There is no one methodology that fits every single situation. First, one must ask many questions about the case, including: How many employees have relevant documents? What is the time frame? How important is the case? How were documents stored? Once there is a clear understanding of the case goals, one can develop the best plan.
Often, we use an electronic file folder collection process. "Electronic file folder-based collections" offer a lot of precision, especially when the employee can work with an attorney to apply the requirements of the case to their universe of information. We have found that most employees organize their electronic documents the same way that they would organize their paper documents. They create subject folders, project folders and product folders within their email environment. A professional can sit down with a custodian (i.e., an employee with pertinent records) and understand how their documents are organized and identify what needs to be collected. This provides the benefit of having someone associate documents with particular concepts, and often grossly limits the number of irrelevant documents collected. Since an attorney must review every page collected for privilege and responsiveness, a more precise collection can reduce costs substantially. So this is our preferred methodology.
However, the file folder collection process takes time, and some employees may no longer even be with the company. Another process we use on occasion is to collect all of the data from a given set of employees and run it through some electronic date or keyword filters. "Keyword-based collections" can be very fast to employ, but they often result in over-collection of non-relevant information and sometimes failure to collect critical documents that would otherwise only be found through thoughtful discussions with document custodians. In addition, the keywords must be quickly negotiated with your adversary and proper tools must be employed to run the searches - both somewhat ambitious assumptions. But when done right, a keyword search can be effective, and when speed is paramount, it is sometimes the best option.
The bottom line is that there is no one-size-fits-all best practice for a quality document collection. The best practice is achieved when you critically assess the case particulars and apply whatever tools and procedures are best fits for the situation.
Editor: Once the company has collected the information, what steps can be taken to better manage document review?
Barrasso: The key to managing document review is understanding that it's a process. And like with any process, it's centered on rules, workflow management and resources.
Review rules can be as simple as finding the privileged documents or as complex as the need to redact trade secrets, apply multiple tiers of confidentiality, issue code and handle foreign language documents. But, whatever the rules, they must be clear, properly communicated, and controlled. This is a place large law firms often struggle. Once there is a defined set of rules, make sure that the team knows the rules through proper training and make sure the rules are being followed through proper quality controls.
A good workflow will track the review at the reviewer level and the project as a whole, while at the same time providing a vehicle for reacting to changes in review and production priorities. Again, the more experience your team has in a process-oriented environment, the better. And costs will be reduced by avoiding unnecessary re-review of incorrectly coded documents due to poor quality or preventable rule changes.
In any process, it is perhaps most important to bring the right resources to bear. In this case, that means the right people. Document review is a highly repetitive, detailed and rigid process, which usually must be done by attorneys. It has been our experience that well-trained and managed contract attorneys are the best option. Contract attorneys are comfortable following workflows, and do not consider this type of work "boring" as a large law firm associate might. In addition, we've found that the long hours typically kept by associates can have a diminishing impact on quality, not to mention the substantial cost benefits of using contractors rather than law firm attorneys.
As in document collection, there is no preferred approach for all scenarios, but the key elements are always the same: rules, workflow and resources. When managed correctly, the process should protect the client from sanctions while at the same time minimizing the costs to meeting production obligations.
Editor: What about the electronic review tools that are hitting the market?
Barrasso: In some instances, it is appropriate to use electronic review tools as part of the review workflow. Simpler reviews, or ones where large populations of documents can be categorized simply by the presence or absence of keywords or key names, often lend themselves well to these methodologies. Sometimes, a large document collection with a short time frame necessitates these tools. When using a search-based review element, it is very important to have excellent protective orders in place for the inadvertent production of irrelevant, yet important company data, and for "clawback" allowances to recall inadvertent privilege production.
Editor: Are there other areas to look for to reduce costs?
Barrasso: Once collected, documents are typically processed by an e-discovery vendor and published to an on-line tool for review. Choosing the right vendor and providing them with good specifications are important. For example, a good vendor can reduce the volume of documents that require review by applying algorithms to remove multiple copies of the exact same document from the collection. We like to suggest these de-duplication methodologies as much as possible. But they must be well considered, because a choice that you make at the outset can influence the flexibility of the production strategies downstream.
It is equally important to choose the right vendor. We look at their experience, project management, capacity and, finally, pricing. A good vendor should have a good understanding of the discovery process and a project manager who can make sure the job is done well. The vendor should have adequate capacity to handle the size of the project. When a preferred vendor has too much work on his plate, your project may suffer. Finally, make sure the vendor will supply you with sample deliveries and make sure you evaluate and provide timely feedback on the sample.
In addition, recent Zubulake decisions provide the opportunity to shift some collection, or even review, costs to your adversary in certain instances. This doesn't apply all the time, but a great way to limit your costs is by getting someone else to pay them.
Editor: Anything else on sanctions?
Barrasso: Never claim that you have produced everything. There are always opportunities for documents to go unnoticed until someone stumbles on them during a deposition. If you do find inadvertently omitted documents, disclose them as soon as you know about them. If you have taken an appropriate posture with your adversary when negotiating discovery issues, it may be much easier to make these last minute disclosures without serious consequences.
Editor: How did you get involved in this type of work?
Barrasso: I have a Ph.D. in microbiology and became involved in the litigation community in 1989 as a factual witness in several biotechnology cases. After a few years on that side of the business, and at the request of a client, I began to put my computer and problem-solving skills to the task of minimizing costs in the discovery process starting with automation of documents and soon followed by re-engineering the more costly aspects of discovery, namely the collection and review of discovery documents.
In the late 1990s and early 2000s, we began to implement that process by offering document collection and document review services. Serving dozens of companies worldwide, we are known for consistently outstanding quality in helping them to develop the right plan and implementing it.