Document Review Best Practices – Pushing the Outside of the Envelope
This is a live blog post from Legal Tech NY 2011. Foster Gibbons, Vice President, Legal Solutions (Global Lead / Document Review), Integreon presents on:
“Pushing the outside of the envelope” is an aeronautics expression that implies taking design, implementation and execution to the next level through performance improvements in technology and technique. This concept is mirrored by best practices in the legal realm which imply a repeatable standard that delivers the most efficient, effective result. This session will help legal professionals understand better how to define consistent practices and processes for managing review in the context of legal discovery and in a manner that balances efficiency, effectiveness, and adaptability for leveraging technology.”
Introduction. Lawyers who perform document review apply legal know-how but are not practicing law; they act under the supervision of licensed lawyers to determine if documents are responsive and if they are privileged. The goal of the review team is to approximate as closely as possible the judgment of the case lawyer who knows the most about the case.
The old practice was to put a room full of junior associates to work reviewing boxes of documents. They might start with 100s of boxes. Their goal was to winnow the collection down to a few boxes that more senior lawyers would read in more detail. The mid-level lawyers would further winnow the collection to a relative handful that the partner would review and use.
The process today is similar except the equivalent is 100-million boxes of paper. There is no way humans can review all. So it’s critical to use technology to winnow the collection. But this has to be done properly.
The three goals of the document review are to
- maintain quality – correct and consistent results; the selected docs must match with senior counsel’s view of the case.
- cost containment - use appropriate tools (e.g., workflow), winnow the collection intelligently
- defensibility – this means minimizing risk of sanctions because of errors in discovery process
Best practices in document review reflect a point in time, the state of the art in the most appropriate use of technology. “If there is a lot riding on the outcome of litigation, there is a lot riding on the manner in which discovery, and by extension, document review, is conducted.”
Document Review Models. There are several models for conducting doc review today. The old model of armies of junior associates is no longer effective; clients are not willing to pay junior associate rates for this task. “Staffing model” and “managed review model” are two common models today. In the former, it is up to the law firm to select and manage reviews, typically hiring staff through an agency. The law firm must design the review process, and develop the appropriate training for the review team. In the latter, a vendor provides a review team, facilities, tech support, and project management. The vendor shares responsibility with counsel for managing the process and defensibility.
Best practices in document review include tailoring the project plan to counsel’s specs, following current industry practices, vetting people appropriately (e.g., reference checks and use of lawyers), maintaining appropriate metrics on performance and quality, and providing the review team comprehensive, substantive and platform training.
Workflow deserves special consideration. The simplest is a “linear” review, where every document is reviewed in the order in which it is ‘found’. This is not a good practice. It is better to prioritize the review by factors such as custodians, date ranges, or document types. It may also be necessary to assign documents by substantive type, for example, scientific docs may need to be reviewed by those with science training, so this requires matching document substance to reviewer qualification.
Quality control means approximating as closely as possible lead counsel’s judgment about documents. It also requires internal (across the review team) consistency, using formal statistics to ensure high quality results, and tracking performance of all reviewers.
Communication should be conducted on a formal schedule. Especially early in the case, the review team should be in regular contact with lead counsel. There will be many questions and sample documents for counsel to review. This helps refine the criteria for reviewing documents (and adjusting the review documentation).
Documenting the review is critical for being able to defend the process. For example, you need to be able to explain / justify custodians chosen and review criteria. These and other decisions must be documented in real time. The documentation binders end up being quite thick. If opposing counsel challenges the production, having thorough documentation is essential to defend the process and outcome.Tweet