DOC REVIEW PART III: FINDING RESPONSIBLE DOCUMENTS IN DISCOVERY
This article explains research techniques that will uncover responsive documents in discovery and optimize your document review process.
If you’ve read parts one and two of our three-part series on document review, you can see why the review process is the most time-consuming, error-prone, and expensive part of the process. ediscovery.
However, it is also the most important and potentially the most rewarding phase. This is when your early discovery planning efforts finally pay off. This article dives into the process of performing effective searches and how to return the most useful and responsive results when reviewing documents.
Optimizing consistency in document review
In recent years, machine learning or artificial intelligence have been suggested as new tools to turn document review into an automated push-button process. While we agree that these technologies may have a place in eDiscovery, they are mostly useful in extremely broad areas. The ultimate success or failure of your review will depend on the decisions made by the individual human reviewers, and less on the type of technology deployed.
Your review team must have negotiated the search terms at a Rule 26(f) conference. This is a mandatory meeting under Rule 26(f) of the Federal Rules of Civil Procedure (FRCP). The parties should have resolved issues of preservation, production and privilege, and a discovery agreement should have been created. (You can download our “Winning the Meet-and-Confer” Prep Kit for more information.)
Starting with the Discovery Agreement as a foundation, your review team should have an internal review guide to help reviewers make informed decisions. This includes details of the document request, facts involved in the case, codes used, questions of privilege and confidentiality. The guide should clarify criteria for responsive documents in discovery, set realistic goals for reviewers, and help enforce a consistent structure for review.
Search criteria and document coding
Search terms are the basic, subjective elements of your review. After running a Boolean or weighted search, documents that found search terms should be reviewed. If too many irrelevant documents are returned, you experience noise or false positives. That means your search criteria needs to be refined, optimized, and tweaked to get results.
Here are the main research techniques you need to know to optimize your results:
- Wildcards: usually an asterisk
- The symbol is used to represent one or more other characters to maximize search results. (e.g. a search for educat* would return educate, educated, education, education, educator, etc.)
- Boolean logic: Logical chains using connectors such as: “AND”, “OR” and “NOT”.
- Proximity search: searches for two or more separately matching terms that occur within a specified distance (e.g. oak within a tree word)
- Concept search: uses proprietary algorithms to find conceptually similar information (e.g. small, small, tiny, minimum)
- Metadata and encoding search: will limit the search to only document metadata and/or encoding fields when returning results (e.g. Document_Date:, CC:, etc.)
Stopwords: Common words that are unnecessary to search and excluded from search and indexing (e.g., the, and, with)
Based on the reviewer guide, individual reviewers will mark a document as responsive or non-responsive. For each document designated as reactive, reviewers also check for confidentiality, privilege, or whether redaction is required. If in doubt about a particular document, reviewers can send it to a “Decision Log”, which will prompt the case team to review it and advise the entire review team on how to resolve it. these problems in the future.
With all reactive documents in discovery, reviewers must also apply a confidentiality designation. Any document containing proprietary information such as business strategy, financial information or other sensitive information should be coded as confidential. In most cases, this designation makes the document “Attorneys’ Eyes Only”.
When in doubt, reviewers should err on the side of confidentiality and privilege. If only part of a document is privileged, it can be coded as “redaction needed” and parts can be redacted using your review tool. NOTE: Do not rely on office productivity software for redactions. In several high-profile cases, redactions performed with desktop software have proven ineffective.
- Here are some of the typical coding panel designations used by review teams:
- Reactivity (reactive, non-reactive, for further examination)
- Core issues (matters related to the case)
- Privilege (privileged – attorney client, work product, consultant, owner, unprivileged)
- Confidentiality (Attorneys Eyes Only, Confidential, Highly Confidential)
- Importance (Hot, Hot and Cold)
Admin (decision log, decision log notes)
Refine your document review process
Examiners will remove or delete documents that are not relevant to the case. As we discussed in our articles on data elimination, you can always use automated filtering methods in the review phase to identify and eliminate large collections of material that are not relevant. This speeds up the examination and avoids unnecessary costs.
As the review progresses, use the in-app reporting tools to track project and reviewer progress. You should look for unusual patterns or delays that may affect your project schedule.
Meanwhile, quality control and due diligence must be performed at every step of the review process to ensure consistent and accurate designation of documents. Your review platform should be able to enforce quality control restrictions such as propagating markup to duplicate documents and grouping families of documents such as emails and attachments.
Your review team may include a second-level review of all relevant documents (or a sample of them) by senior attorneys. These lawyers can randomly review the team’s coding to check for any inconsistencies or errors.
- Given the urgent nature of most questions, be aware of issues that may upset your exam project. In particular, allow enough time to:
- Conversion to image format if requested
- Resolve inconsistent markup in documents
- Volume of redactions and workflow provided to complete the redactions
- Quality controls
A production sample to identify technical issues before the production deadline
Quality control and correct registration
You should also ensure that you have prepared complete records of the discovery process. This includes collection, processing, review and production details for future reference. Under FRCP Rule 30, the opposing party may request to be notified of these processes and workflows.
As mentioned earlier, start with a comprehensive review and project plan and know your review strategy. (Re: coding, subject matter experts, sampling, quality control method, privilege, project management, etc.) Also identify an appropriate review software solution before initiating the review phase.
Similarly, the QC plan should assign tasks to ensure that output is accurate, redactions have been applied, and the correct document fields are available to output to the load file.
The Final Word on Document Review
As you can see, document review requires a lot of planning, good communication, and meticulous organization and record keeping to be successful. Many attorneys feel that the amended Federal Rule of Civil Procedure 37(e) makes it harder to be disciplined for errors in the discovery process. But, you only have one chance to properly review your eDiscovery document. For more tips on reviewing documents, check out our comprehensive e-guide to reviewing documents.