Good Practical Stuff

Why Review Is Much Harder Than You Think

What you review needs careful consideration and it should almost always be a small subset of what you’ve collected.

Linear review is alive and well and prospering. I’ve written about companies developing dashboards to better manage review like Esquify to allow for capturing and seeing real time metrics of reviewers. I recently saw Periscope — another reviewer management platform developed by Gravity Stack, an off-shoot of Reed Smith. Esquify and Gravity Stack are not alone — virtually every review shop across the country, and many firms, have developed similar products. I’ve advocated for more metrics for years, so those developments are welcome.

But do we really need all of this linear review?  Is it worth the money?

Review is essential — no question. But what you review needs careful consideration and it should almost always be a small subset of what you’ve collected. To get to that subset takes thoughtful preparation and time, together with input from the client, consideration of the case strategy and your obligations.

The truth is that review done right is really damn hard. I want you to set aside the notion that it’s easy to throw a roomful of contract lawyers at a database and have them start on batches of documents to find what you need. It’s not something that is thrown together in a day or even a couple days. Review must be very strategic, and it starts at the beginning.

When I say beginning, I’m not talking about the left side of the EDRM — I’m talking about the complaint. We lost track of the pleadings at the castle walls of discovery and we have to re-focus on that concept.

The pleadings (or a CID or other agency request) should always form the baseline of the review. Requests for production that come as a result of the pleadings must be relevant to the claims. And careful attention needs to be paid throughout the process of identifying what data should be reviewed to respond to those requests.

Yeah, yeah, yeah, we know, you say. But are you really paying attention? The truth is that it’s very easy to comb over the details because you have a million things to do and manage as a litigator and you need to get a production out. And the new rules in 2015 made it even harder.

There are many reasons why review is hard. Here are a few at the top of the list.  Take a look, then ask yourself whether you really acknowledge these difficulties in planning for a review.

1. VOLUME, VOLUME, VOLUME. We have so much data. Even with a targeted, thoughtful collection, the truth is that the software we use to create, store, send and receive data is not meant to be mined effectively for ediscovery. Targeted collection is a key — no question — but even afterwards, you’ll have to cull further. PRO TIP:  Have an attorney work with the custodian on the interview and the collection so you can identify search terms and culling methods that can be used for the initial review. This needs to be someone who knows and understands the complaint and effective litigation strategy all the way through trial presentation. It all ties together.

2. Complexity of different types of information.  It’s not just about email anymore. The typical collection from a hard drive or user files includes email and attachments, plus audio files from voicemail, links to videos, instant messaging, social media and more. Forget about things like having to identify and translate documents in foreign languages — that’s another piece entirely. You need to think about what from your collection will need to be produced and at what stage, and organize the data as it goes into the database.

3. So many issues.  Every case has multiple issues and data that pertains to each. Before you load data, think about whether you can set up an early tagging structure and tag data in bulk or organize it in sets for review. You can organize it in many different ways other than by custodian (but do that too) — by RFP#’s, categories of data, claims, types of data, time periods, etc.

4. Training reviewers is hard and requires thoughtful planning. I’m not a fan of so-called first pass review. I think it’s a waste of time generally (although more important in responding to government investigations). Why review just for relevance when you can use technology or manual culling for much of that? Review should be about getting as much value as possible out of eyes on data. Organize data by issue and have your reviewers write a report about what they are seeing every day. It’s an extra 20-30 minutes of time that will keep you review directed even more than metrics about how many docs are reviewed, how many tagged by issue, etc. But being able to do that requires having good quality lawyers — whether contract or otherwise — who have litigation experience and can help determine the value of documents to issues beyond just relevance.

5. Technology is not an easy button. While it would be nice, the technology we have at our disposal only augments our knowledge and is as good as how it is applied and used. Date filters can be an amazing ability to limit scope of review and production, but must be done early on in the process. We’ll talk about that later as a huge piece of cooperation. AI and PC or TAR can be of huge value, but as we’ve seen in case law, you have to be up on these technologies and prepared to discuss and defend them BEFORE you start your review. And good attorneys know that really culling down a collection requires layering technologies. Keywords, date filters, junk and privilege filters, alias detection, predictive coding, clustering, etc. are all amazing tools, and each data set requires a different approach and combination to get to what you need to create a meaningful review set.

6. Devising a strategy and implementing technology takes time. Iteration is the name of the game. Run something, see what you get. The strategy team should be spending hours understanding the collection.

7. Negotiation. Yes, I believe this is an enormous piece of review. Because if you don’t negotiate parameters, form of production, how to deal with each type of data, then you don’t know what you need to do in review to make what you promised happen. A good strong ESI protocol that is specific to the case and addresses the types of data that you anticipate needing is key. If you find something new, amend the protocol. Do this early and cooperatively and you’ll be able to set up review with confidence and avoid the Chinese Fire Drill. 

Review is a necessary part of litigation — no question. But what you review, and how you review it can be done much more effectively with thought and planning. Sweat the details. Revisit the bounds of what needs to be produced and when. Have a plan and make it strategic. And know that it’s harder than you think and requires a lot more time than you think, so plan accordingly. Stop making decisions on high that require short-circuited decisions in review.

There are two advantages to acknowledging and addressing the complexity of review — you’ll get to what you need to use for the case faster and not spend so much time helping the other side prepare their case through production and privilege logs, and your client’s bill will reflect valuable work product. I call that a win for all involved.

This article first appeared on Above the Law.

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