Electronic Discovery

Yesterday, we covered drafting criteria for responsiveness.  You may, however, be asking the review team to do more than identify responsive documents.  You might, for example, also ask them to identify privileged documents, significant documents, documents that need to be redacted, documents that need to be reviewed by an expert, and so on.  In this issue, we’ll talk about reviewing for privilege.

First, let’s clarify what you’ll be asking the review team to do.  If you are using a team of contract reviewers, it is unlikely that you’ll be asking them to make privilege decisions.  You might, however, ask them to identify and flag potentially privileged documents.  Under this approach, attorneys on your team who can make privilege decisions would do a subsequent review of the potentially privileged documents.  That’s when privilege decisions will be made.

Of course, you’ll need to give the contract team criteria for potentially privileged materials.  Consider including these information points and instructions in the criteria:

• The names and initials of individual attorneys, both outside counsel and corporate in-house attorneys.
• The names and initials of legal assistants and other litigation team members of outside counsel and the corporate legal department (work done by these individuals under the direction of counsel may be privileged).
• The names of law firms that have served as outside counsel.
• Documents on law firm letterhead.
• Documents stamped “Work Product”, “Attorney Client”, “Privileged” or other designations indicating confidentiality re litigation.
• Legal documents such as pleadings or briefs in draft form.
• Handwritten annotations on documents that may be authored by counsel or litigation team members under the direction of counsel.
• Subject areas of privileged communication.

In addition, provide instructions for documents that will not be privileged.  In every collection, there will be certain types of documents that won’t be privileged unless they bear privileged annotations.  Examples are published literature, press releases, advertisements, corporate annual reports, brochures, user manuals…  in short, any documents that are public in nature.  These materials won’t be privileged unless they bear privileged annotations.  Likewise, most document collections will include internal documents that will fall into the same category.  Examples may be insurance policies, invoices, manufacturing reports, and so on.  Create a list of these documents and include them in the criteria instructions.

Have you drafted criteria for a privilege review of a large collection?  How did you approach it and how well did it work?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

 

The criteria that you prepare for the review will be governed by the objectives that you established for the review.  At a minimum, you’ll draft criteria for responsive documents.  In addition, you may draft criteria for privileged documents, hot documents, and so on.  Let’s start with drafting responsive criteria.  For this step, you’ll need the request for production and the notes that you took when you sampled the document collection.

For each separate point on the request for production, do the following:

• Expand on the definition.  Make it clearer and more detailed.  Make sure that the language you use is understandable to lay people.
• List topic areas that are likely to appear in responsive documents.  Make sure these topic areas are objective in nature and that they minimize the need for judgment.  For example, don’t include criteria like “documents that demonstrate negligence in operations”.  Rather, break this down into real-life objective examples like “documents that discuss accidents”, “documents that discuss poor employee performance” and so on.  Use real examples from the documents – examples that you came across during your sampling of the collection.
• List date ranges of responsive materials.
• Based on your review of the documents, list as many examples as you can of document types that are responsive, and attach examples to the criteria. 
• Based on your review of the documents, include as many examples as you can of responsive text.

Several members of the litigation team should review the draft criteria.  Once all suggestions for modifications and additions are agreed upon, put the criteria in “final” form – “final” meaning the document that you will use at the start of the review project.  As you go move forward, update the criteria with more examples and clearer definitions as you learn more about the collection.

In the next issue, we’ll cover criteria for other review objectives you might have established (for example, you might be screening for privilege or significance).

Have you drafted criteria for a document review of a large collection?  How did you approach it and how well did it work?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

 

In theory, responsive documents are described in the other side’s request for production.  In practice, those requests are often open to interpretation.  Your goal in drafting responsive criteria is to distill those requests and create a clear set of objective rules that leave little room for interpretation – a set of rules that can be applied correctly and consistently to the document collection.  This step is important for a couple of reasons:

• It is difficult to get consistent results from a group of people doing the same task.  No two people will make exactly the same decision about every document – not even attorneys.  Even an individual attorney will not always make the same decision about duplicates of the same document.  Thorough, clear, detailed and objective criteria will minimize inconsistencies.
• If discovery disputes arise, it may be necessary to demonstrate a good-faith effort.  Thorough, detailed criteria will help.  Judges understand the human error factor.  They are less tolerant of work that was approached casually or sloppily.  Clear, detailed criteria will demonstrate a carefully thought-out approach.

Where do you start?  First, do a little preparation.  There are some basic materials and information that you’ll need:

• The complaint.
• The request for production
• Knowledge of the document collection (in the last blog in this series, we talked about sampling the collection).
• Knowledge of the strategy for defending or prosecuting the case.

Once you’ve read the complaint and the document request and you’ve sampled the collection, you’ll have a feel for the materials that reviewers are likely to see and how those documents relate to the facts and legal issues in the case.  If a strategy for defending or prosecuting the case has been developed, make sure you understand that strategy.  It is likely that an understanding of the allegations and the strategy will broaden your view of what is responsive and important.

After these preparation steps, you’ll be ready to develop a first draft of the criteria.  In the next issue, we’ll talk about how to structure and write effective criteria.

Have you drafted criteria for a document review of a large collection?  How did you approach it and how well did it work?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

 

Once you’ve defined the objectives of the review, you need to move forward with other preparation steps: You need to draft review criteria, you need to identify the type of people that are appropriate for the review (do you need a staff of attorneys?  lay people?  staff with expertise in a specific subject matter?), and you need to pull that team together.  

Before moving forward with these steps, you need a bit more information.  You need to know what’s in the document collection.  You need to know what types of documents are in the collection and you need to know what type of content is in the documents.  Once you’ve got a handle on the collection, you’ll be in a better position to make decisions on subsequent steps.

Start by interviewing custodians.  You don’t need to talk to every custodian, but talk to a representative sample.  For example, if you are collecting documents from a corporate client, speak to at least one person from each department from which you’ve collected documents.  The person you speak to should probably be a manager or someone who has a good handle on the overall operation of the department.  Find out about the department’s operations and determine its role in the events that are at issue in the case.  Ask about the types of documents that are generated and retained.  Information that you glean here will help in the next step:  sampling the collection.

After you’ve collected information from the custodians, take a look at the documents.  Review a representative sample.  Look at documents from each custodian.  Take notes on what you are finding and make copies of documents that can be used as examples to illustrate the criteria you’ll be drafting and to be used in training.

Your ultimate goal is to develop a set of objective rules that a well-trained staff can apply effectively and consistently to the collection during the review.  The more you learn about the documents in advance, the better you’ll be able to do that.  So spend the time up front learning what you can about what’s in your document collection.

Do you typically sample an eDiscovery document collection before a review?  How did you approach it?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.