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Managing an eDiscovery Contract Review Team: Applying Topic Codes in the Document Review
 

So far we’ve covered drafting criteria for responsiveness and for privilege.  You may, however, be asking the review team to do more than that in the document review.  You might, for example, ask them to apply topic codes to the documents or to identify helpful or harmful documents.  At this point in the case, you will be better off keeping this very simple.  There are several reasons for this:

  • Chances are that you’re on a tight schedule.  An in depth analysis of the collection at this point may cause you to miss production deadlines.
  • If you ask people to focus on too many things in the review, you increase the likelihood of errors and inconsistencies, especially if the team is inexperienced with the case, the client and the documents.
  • You’re still in the early stages of the case.  As it evolves you’ll identify new facts, issues and witnesses that will be important.  This will not be your only effort to match documents with issues, facts and witnesses.

It may be reasonable, however, to ask the team to do some very basic categorization of the documents around topics.  Let me give you an example.  Let’s say you are handling a pharmaceutical case involving a drug product that is alleged to have significant adverse reactions.  You know that you’ll be interested in documents that discuss testing of the product, marketing, manufacturing, and so on.  You could ask the team to apply those general types of topics to the documents.  You could also identify a few examples of text that will be helpful and text that will be harmful, and create corresponding topic codes (using our pharmaceutical case illustration, you might have a topic code for “Death of a patient”).   A very simple set of topic codes shouldn’t slow down the review, and this effort will provide some search hooks into the collection once the review is complete.

Once you’ve developed a simple, workable topic list, write clear, objective definitions for each topic, and find documents in the collection that serve as examples of each.  Include those definitions and examples in the criteria.

Do you have topic codes applied to a collection in an initial review?  How do you approach it and how well does it work?  Please share any comments you have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Case Law: Privilege Waived for Produced Servers

If you were at the International Legal Technology Association (ILTA) trade show this past August, you may have noticed a huge unfinished building in the middle of the strip – the Fontainebleau Resort.  It sits idle after financing was pulled, forcing Fontainebleau Las Vegas LLC to file for Chapter 11 bankruptcy in June of 2009.  Naturally, lawsuits followed, between the Term Lenders and Fontainebleau Resort, LLC (FRLLC), the third party parent of Fontainebleau Las Vegas – In re Fontainebleau Las Vegas Contract Litig., (S.D. Fla. Jan 7, 2011)

A company that responded to a third party subpoena and court orders compelling production by handing over three servers to lenders without conducting any relevancy review and without reviewing two of the servers for privileged materials waived privilege for documents on the two servers that were not reviewed.

The parent company of a resort in bankruptcy proceedings was served by lenders to the resort with a subpoena for production of documents. The company did not object to the scope of the subpoena, and the court granted a motion of the lenders to compel production. Counsel for the company then halted work by an e-discovery vendor who had completed screening the company’s email server for responsive documents but had not started a privilege review because of concerns that the company could not pay for the services. Counsel for the company also sought to withdraw from the case, but the company was unable to find new counsel.

Rather than seeking a stay or challenging discovery rulings from the court, the company turned over data from a document server, an accounting server, and an email server. According to the court, the three servers were turned over to the lenders without any meaningful review for relevancy or responsiveness. Despite an agreement with the lenders on search terms for the email server, the company produced a 126 gigabyte disk with 700,000 emails from that server and then, without asking for leave of court, was late in producing a privilege log for data on the email server. The lenders sought direction from the court on waiver of privilege and their obligation if they found privileged materials in the data produced by the company. The company for the first time then raised objections to the burdensomeness of the original subpoena served over six months earlier given the company’s lack of resources or employees to conduct a document review.

The court held that the company “waived the attorney-client privilege and work product protection, and any other applicable privileges, for the materials it produced from two of three computer servers in what can fairly be described as a data dump as part of a significantly tardy response to a subpoena and to court-ordered production deadlines.” The court stated that in effect, the company “took the two servers, which it never reviewed for privilege or responsiveness, and said to the Term Lenders ‘here, you go figure it out.’”

However, because the company prepared a privilege log for the email server, the court added that privileges were not waived for materials from the email server. Also, the lenders were directed to alert the company to any “clearly privileged material they may find during their review of the production on the documents and accounting servers.” Although the court was not ruling on admissibility at trial of that privileged material, the lenders would be allowed to use it during pre-trial preparations, including depositions.

So, what do you think?  Was justice served?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Managing an eDiscovery Contract Review Team: Drafting Privileged Criteria

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.

Managing an eDiscovery Contract Review Team: Drafting Responsive Criteria – a Step-by-Step Guide
 

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.

eDiscovery Searching: Proximity, Not Absence, Makes the Heart Grow Fonder

Recently, I assisted a large corporate client where there were several searches conducted across the company’s enterprise-wide document management systems (DMS) for ESI potentially responsive to the litigation.  Some of the individual searches on these systems retrieved over 200,000 files by themselves!

DMS systems are great for what they are intended to do – provide a storage archive for documents generated within the organization, version tracking of those documents and enable individuals to locate specific documents for reference or modification (among other things).  However, few of them are developed with litigation retrieval in mind.  Sure, they have search capabilities, but it can sometimes be like using a sledgehammer to hammer a thumbtack into the wall – advanced features to increase the precision of those searches may often be lacking.

Let’s say in an oil company you’re looking for documents related to “oil rights” (such as “oil rights”, “oil drilling rights”, “oil production rights”, etc.).  You could perform phrase searches, but any variations that you didn’t think of would be missed (e.g., “rights to drill for oil”, etc.).  You could perform an AND search (i.e., “oil” AND “rights”), and that could very well retrieve all of the files related to “oil rights”, but it would also retrieve a lot of files where “oil” and “rights” appear, but have nothing to do with each other.  A search for “oil” AND “rights” in an oil company’s DMS systems may retrieve every published and copyrighted document in the systems mentioning the word “oil”.  Why?  Because almost every published and copyrighted document will have the phrase “All Rights Reserved” in the document.

That’s an example of the type of issue we were encountering with some of those searches that yielded 200,000 files with hits.  And, that’s where proximity searching comes in.  Proximity searching is simply looking for two or more words that appear close to each other in the document (e.g., “oil within 5 words of rights”) – the search will only retrieve the file if those words are as close as specified to each other, in either order.  Proximity searching helped us reduce that collection to a more manageable number for review, even though the enterprise-wide document management system didn’t have a proximity search feature.

How?  We wound up taking a two-step approach to get the collection to a more likely responsive set.  First, we did the “AND” search in the DMS system, understanding that we would retrieve a large number of files, and exported those results.  After indexing them with a first pass review tool that has more precise search alternatives (at Trial Solutions, we use FirstPass™, powered by Venio FPR™, for first pass review), we performed a second search on the set using proximity searching to limit the result set to only files where the terms were near each other.  Then, tested the results and revised where necessary to retrieve a result set that maximized both recall and precision.

The result?  We were able to reduce an initial result set of 200,000 files to just over 5,000 likely responsive files by applying the proximity search to the first result set.  And, we probably saved $50,000 to $100,000 in review costs – on a single search.

I also often use proximity searches as alternatives to phrase searches to broaden the recall of those searches to identify additional potentially responsive hits.  For example, a search for “Doug Austin” doesn’t retrieve “Austin, Doug” and a search for “Dye 127” doesn’t retrieve “Dye #127”.  One character difference is all it takes for a phrase search to miss a potentially responsive file.  With proximity searching, you can look for these terms close to each other and catch those variations.

So, what do you think?  Do you use proximity searching in your culling for review?  Please share any comments you might have or if you’d like to know more about a particular topic.

Managing an eDiscovery Contract Review Team: First Steps in Drafting Criteria
 

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.

Managing an eDiscovery Contract Review Team: Get a Handle on the Document Collection
 

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.

Managing an eDiscovery Contract Review Team: Clearly Define Objectives
 

Yesterday, we introduced the blog series to discuss Managing an eDiscovery Contract Review Team.  Now, it’s time to get started!  The first step in preparing for a document review is to very clearly define the objectives of the review.  It’s an easy step, but it’s very important.  It will drive several subsequent decisions that you’ll make regarding management of the project. 

Here are some likely objectives you may choose:

  • Identify responsive documents
  • Identify privileged documents
  • Identify documents to be reviewed by an expert
  • Identify significant helpful and harmful documents

The choices you make here will affect the type of people you’ll assign to the review, the amount of time the review will take, the type of criteria you’ll need to draft, and the level of training you’ll need to do.

How do you make these decisions?  There are a few factors that should affect your choices:

  • The nature of the case and the nature of the document collection:  What type of case are you handling and what types of documents are in the collection?  If the case involves highly technical or scientific subject matter, you may need to train the review staff to segregate those documents that require review by an expert.
  • Where are you on the case and what do you know so far?  If you don’t know much yet about the case and what will be important, you won’t be in a position to ask reviewers to recognize significant materials.
  • What’s the pool of available reviewers?  Can you easily pull together a team that’s qualified to identify potentially privileged or significant documents?   If you need a very large team, you might be better off working with a team that can more easily focus on objective criteria, and use a smaller group of attorney staff to work with a smaller collection after the initial review.

Determine the objectives that will work best for your case and that can be accomplished with the available resources.  Make sure that the objectives are clearly defined and that everyone on the litigation team understands the objectives and has the same expectations.

What do you look to accomplish with an eDiscovery document review?  Have you had objectives in addition to those listed above?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

Managing an eDiscovery Contract Review Team: Introduction
 

In a perfect world, attorneys responsible for a case would review an entire document collection for responsive materials.  On large cases with huge collections, that’s just not practical or possible.  In those situations, your only choice may be to pull together a team of contract reviewers to identify responsive materials.  

How well does this work?  A review done by a contract review team will certainly cost less than one done by a team of law firm attorneys.  More likely than not, it will be done more efficiently.  And if there’s good preparation and management, the quality will be just as good (in fact, it may be better because a contract staff is more likely to stay better focused on the inevitable, more mundane aspects of the work).

I’ve managed many successful review projects done by teams of contract employees.  Sometimes those teams were made up of attorneys, but more often they included mostly paralegals and college-educated lay personnel with good reading and comprehension skills.  These projects were successful because they were structured and managed in a way where decision-making responsibility was in the hands of the attorneys, but there were effective mechanisms in place for disseminating those decisions to the team.  In this blog series, I’m going to walk through how to do this.  Specifically, we’ll be covering:

  • Clearly defining the objectives of the document review
  • Getting a handle on the document collection
  • Determining the right mix of people for the project
  • Creating effective document review criteria
  • Effectively training the review team
  • Managing the project
  • Disseminating updated project information
  • Implementing effective quality control procedures

What has been your experience with contract review teams for large projects?  Do you have good or bad experiences you can tell us about?  Are there any specific problems you’ve had with review teams?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Trends: 2011 Predictions — By The Numbers
 

Comedian Nick Bakay”>Nick Bakay always ends his Tale of the Tape skits where he compares everything from Married vs. Single to Divas vs. Hot Dogs with the phrase “It's all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year.  We’ll have some of our own in the next few days (hey, the longer we wait, the more likely we are to be right!).  However, before stating those predictions, I thought we would take a look at other predictions and see if we can spot some common trends among those, “googling” for 2011 eDiscovery predictions, and organized the predictions into common themes.  I found serious predictions here, here, here, here and here.  Oh, also here and here.

A couple of quick comments: 1) I had NO IDEA how many times that predictions are re-posted by other sites, so it took some work to isolate each unique set of predictions.  I even found two sets of predictions from ZL Technologies, one with twelve predictions and another with seven, so I had to pick one set and I chose the one with seven (sorry, eWEEK!). If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment.  2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out.  Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

  • Cloud and SaaS Computing: Six out of seven “prognosticators” indicated that adoption of Software as a Service (SaaS) “cloud” solutions will continue to increase, which will become increasingly relevant in eDiscovery.  No surprise here, given last year’s IDC forecast for SaaS growth and many articles addressing the subject, including a few posts right here on this blog.
  • Collaboration/Integration: Six out of seven “augurs” also had predictions related to various themes associated with collaboration (more collaboration tools, greater legal/IT coordination, etc.) and integration (greater focus by software vendors on data exchange with other systems, etc.).  Two people specifically noted an expectation of greater eDiscovery integration within organization governance, risk management and compliance (GRC) processes.
  • In-House Discovery: Five “pundits” forecasted eDiscovery functions and software will continue to be brought in-house, especially on the “left-side of the EDRM model” (Information Management).
  • Diverse Data Sources: Three “soothsayers” presaged that sources of data will continue to be more diverse, which shouldn’t be a surprise to anyone, given the popularity of gadgets and the rise of social media.
  • Social Media: Speaking of social media, three “prophets” (yes, I’ve been consulting my thesaurus!) expect social media to continue to be a big area to be addressed for eDiscovery.
  • End to End Discovery: Three “psychics” also predicted that there will continue to be more single-source end-to-end eDiscovery offerings in the marketplace.

The “others receiving votes” category (two predicting each of these) included maturing and acceptance of automated review (including predictive coding), early case assessment moving toward the Information Management stage, consolidation within the eDiscovery industry, more focus on proportionality, maturing of global eDiscovery and predictive/disruptive pricing.

Predictive/disruptive pricing (via Kriss Wilson of Superior Document Services and Charles Skamser of eDiscovery Solutions Group respective blogs) is a particularly intriguing prediction to me because data volumes are continuing to grow at an astronomical rate, so greater volumes lead to greater costs.  Creativity will be key in how companies deal with the larger volumes effectively, and pressures will become greater for providers (even, dare I say, review attorneys) to price their services more creatively.

Another interesting prediction (via ZL Technologies) is that “Discovery of Databases and other Structured Data will Increase”, which is something I’ve expected to see for some time.  I hope this is finally the year for that.

Finally, I said that I found serious predictions and analyzed them; however, there are a couple of not-so-serious sets of predictions here and here.  My favorite prediction is from The Posse List, as follows: “LegalTech…renames itself “EDiscoveryTech” after Law.com survey reveals that of the 422 vendors present, 419 do e-discovery, and the other 3 are Hyundai HotWheels, Speedway Racers and Convert-A-Van who thought they were at the Javits Auto Show.”

So, what do you think?  Care to offer your own “hunches” from your crystal ball?  Please share any comments you might have or if you’d like to know more about a particular topic.