The review and production phases of an electronic discovery project are laden with minefields destined to trap unsuspecting counsel. Effective project and time management are among the practical solutions that can significantly impact the outcome of a case and the related expenses. Equally critical is having an understanding of potential traps that can delay the processes and require the need for additional resources.
As with all phases of an electronic discovery project, the review process is fraught with its own unique set of challenges. At the onset of the review process, the reviewer must take the critical step of selecting a review application. Before making this decision, the reviewer must take many factors into consideration. One of the most important issues to take into account is whether the application is web-based or requires a Citrix or terminal service environment.
A web-based review environment allows for a simpler deployment for a company and its outside counsel to engage in a review. The simplicity of this tool is primarily due to the web-based application only requiring the reviewer to have access to an Internet browser to connect to the review application. Because Internet browsers are standard in most operating systems, a web-based review environment typically does not require installing additional third-party software.
When using a Citrix or terminal service environment, inside and outside counsel may have to coordinate with their respective IT departments to facilitate access to the review applications. Such environments use non-standard ports that may require the IT staff to make customized arrangements that enable the network traffic to move outside of the firewall(s). Due to these constraints, most counsel opt to use web-based review applications.
Devising a document review strategy is a crucial element in the review process. The development of such a strategy helps to ensure effective time management, a crucial element to minimizing costs during the review process. At this juncture, counsel must determine the most appropriate methodology to assign documents to the review team. There are several options for assigning documents including batching documents or assigning by specific criteria, custodian, search term and/or page count.
Batching documents enables the lead project manager to designate the number of documents assigned to each reviewer at any given time. An alternative is to assign documents by custodian, which allows one person to review all of the documents for a designated custodian. Assigning by search term enables an individual to review all documents related to a particular search term, which can be across multiple custodians.
The final method of assigning documents for review is by page count. With this technique, a uniform number of records is allocated to each user. This method is gaining popularity because it allows counsel to distribute the workload evenly. It also enables counsel to better monitor and analyze the performance of each reviewer. Best practice dictates that when using this technique the documents should not be split based upon page count. As a result, individuals review only whole documents, which sometimes requires counsel to make page count adjustments in delegating assignments.
During strategic planning of the implementation process, it is imperative for counsel to take into consideration the role of issue tags. Issue tags, which can allow for quicker review of data, are used to code documents during a review and include, but are not limited to, privileged, non-privileged, non-responsive, hot documents and items to be produced. By defining issue tags at the onset of a project, counsel can ensure the tags are universally applied to the entire data set. This becomes critically important when multiple law firms are involved and complex production is required. Documents are produced to opposing parties based on issue tags. Because of this, there needs to be consistency, otherwise counsel could inadvertently produce privileged documents that should not be turned over. It is overly burdensome and cost prohibitive if issue tagging is inconsistent and must be corrected prior to production.
In most electronic discovery matters the review process occurs in various phases. For large-scale document reviews, the first phase is typically conducted by contract attorneys, paralegals and/or junior associates with lower hourly rates. The attorney review stage tends to be one of the most costly parts of a litigation or government investigation because it often requires a massive labor-intensive effort. During this phase documents are split into groups and then categorized as responsive or non-responsive.
Documents classified as "responsive" are reviewed by more senior-level outside counsel as part of the second phase of the document review process. At this latter phase, counsel tags responsive documents and determines whether or not the documents are privileged. Entire documents can be marked as privileged and withheld from production. When appropriate, a portion of a document can be redacted and marked as privileged; however that document is still provided to the opposing party with the text that is deemed to be privileged removed.
Once the documents are reviewed, tagged and redacted as necessary, the electronic discovery provider sorts the documents based on the issue tags. The sorted documents that are tagged as "responsive and produce" are placed into a separate folder in the review environment. Typically, outside counsel reviews this folder one final time to ensure that privileged documents are not provided to the opposing party.
With counsels' approval, the electronic discovery provider initiates the production phase. This entails renumbering all of the documents to be produced with a unique production Bates number that is embossed on to every page of the produced data set. The production code helps counsel properly track and account for every document that is produced as well as to whom it was produced and delivered. In addition, any document that has been redacted has the redaction permanently embossed. The redacted document is then re-OCRed (optical character recognition) to ensure that the opposing party does not receive any of the redacted text that appears in documents that they receive.
Prior to turning over all documents to the opposing party, the designated metadata and the text are built into a data load file. Also, during this phase an image load file is built for all TIFF images. These two load files and the TIFF images, which have been separately placed into a folder, are produced to the opposing party. Counsel also generates a privilege log, which designates the list of privileged documents that are withheld.
Gaining a full understanding of the review and production phases and working closely with knowledgeable electronic discovery consultants before initiating an electronic discovery project are essential measures to ensuring a successful case. These manageable steps enable counsel to remain within budget while meeting the stringent deadlines imposed in the electronic discovery process.
Jerry F. Barbanel is the Executive Vice President in charge of IT Risk and Litigation Consulting for the Financial Advisory and Litigation Consulting Services practice at Aon Consulting. Mr. Barbanel can be reached at (201) 966-3494. Thomas W. Avery is a Senior Director in charge of the Electronic Discovery group at Aon Consulting. Mr. Avery can be reached at (949) 608-6424.