eDiscovery Daily Blog

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.