All about Document Review

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All about Document Review With the progress in information technology, document review has become a separate industry and with the amendments to the e-discovery rules in 2006 to the Federal Rules of Civil Procedure, the need to understand and use document review software has become compulsory for every attorney. The more we depend upon electronic documents through the entire lifetime of documents and archiving, the more information become accessible to all parties to a lawsuit, and the greater need arises for an attorney to be fully focused in document review processes.

Earlier, in May 2012, the head of Greenberg Traurig had

process has been thoroughly dissected by the industry,

to apologize to the open court for failing to produce

and modern document review consists of the following

important evidence that was not noticed by the lawyer

phases:

handling the case. The important document was a part of an email attachment. The lawyer who was

1.

Separate important documents from non-respon-

responsible, apologized and fumbled that she could not

sive documents and eliminate non-responsive

remember … and the opponents filed a suit related to

documents from the pile before setting out to

‘discovery’ and cried fraud and misrepresentation. Not

work.

a palatable situation for any law firm. But the situation

2.

would not have happened in the ordinary course

Tag all documents that are marked “privileged” or “confidential” or bears the names of counsels.

of events if the rules and principles of meticulous

3.

document review and archiving were followed.

Categorize documents into “responsive,” “confidential,” and “privileged” at the very least. Some important documents may also be tagged with

So, in law practice, a document review is no more the simple ‘quality control’ and proofing and tallying of law

other alerts like “hot doc.”

4.

and facts. The entire document review process has

mon categorization so that documents related

become collaborative, and in fact all big law firms and corporate businesses now employ document review

Issue related tags are also used on top of comwith particular issues can be quickly accessed.

5.

Create parent-child relationships between docu-

teams as opposed to allotting document review as

ments: a typical parent-child relationship would

personal responsibilities. So the document review

be an email and its attachment.

process can now be clearly segregated into two types

6.

Mark whether a document is a ‘parent’ or a

– (1) Document review at a basic and personal level,

‘child,’ it is safer to treat and tag documents

(2) Document review as a collaborative effort and

individually, as a ‘privileged’ email can contain an

team project. Though the basic process remains the

attachment which should not be privileged and

same, document review at a personal level has become

vice-versa. Categorizing parent-child documents

enhanced with experience learned from collaborative

inconsistently can lead to terrible lapses like the

efforts, and collaborative efforts differ only in their

Greenberg Traurig event mentioned earlier in this

need for managerial support.

article.

7.

Set strategies and deadlines to complete the

Today’s document review is not about simply taking

first tier review comfortably and with adequate

notes or doing QC, the steps of the document review

resources at hand. With document reviews, it is

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8.

absolutely necessary to avoid last-hour rushes.

because this is the area where the greatest num-

Form a full understanding of the underlying facts

bers of errors occur.

of the case, the issues including questions of

9.

16. Prepare a ‘privilege log’ and substantiate the

facts and law, and the nature of potential and

legality of withholding each document marked as

present discovery requests.

privileged. The privilege log needs to contain suf-

Create a ‘case memo’ including a synopsis of the

ficient information to identify documents and the

case and issues that need to be addressed.

rationale for withholding them.

10. Create a review strategy and a brief review

17. Create a ‘project journal’ so that if the document

manual that can be referred back in case the

review is called into question you have sufficient

project goes collaborative and others need to be

and ready data to rely on. The project journal

involved.

should contain – introduction, mention of all

11. Separate all “Pleadings” properly tag them and

case materials, all project related questions and

establish parent-child relationships. Create a

answers, timeframe and delivery schedules, error

brief procedural history of the case to follow as a

rates and QC methods adopted, privilege log and

guide for finding documents and relevant con-

all redaction efforts.

tent.

12. Index all relevant discovery requests, responses,

By approaching the document review professionally,

objections, orders and potential documents that

and by using the tools made available by IT, it

may be called for discovery

is possible to carry out proper document review.

13. Create an inside and outside counsel list with contact details. Assign ownership of documents

Traditional and unsystematic methods can end in catastrophe, even affecting the license of an attorney.

and include the information on notes with relevant documents as to the people who know most

As has already been established in Qualcomm Inc

about those documents.

v. Broadcom Corp. 2008 WL 66932 (S.D. Calif. Jan.

14. Do not wait until you finish the entire process to

7, 2008), attorneys now incur a significant personal

begin Quality Control. Document review pro-

liability when failing to produce documents responsive

cesses today often extend to thousands of docu-

to a discovery request. The key to avoiding such

ments. The QC must start as soon as the primary

situations are in creating a comprehensive document

sorting of documents is finished and should con-

review strategy, both at personal levels and in

tinue parallel with the rest of the review process.

collaborative efforts.

15. It is important to check twice all documents that are tagged as “responsive” and “not privileged”

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