Our Insights on eDiscovery

Yesterday, we talked about applying topic codes to the documents to identify helpful or harmful documents. Today, we will talk about identifying a project manager for the review. A good, experienced project manager is critical to the success of your review project. In fact, the project manager is the most important part of the equation.

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.

Years ago, I put together a CLE course about metadata awareness and how hidden data (such as tracked changes and comments) can cause embarrassment or even inadvertent disclosures in eDiscovery. The production of metadata with ESI continues to be a big issue in eDiscovery and organizations need to consider how to handle that metadata (especially if it’s hidden), to avoid issues. Last fall, the American Bar Association published an article with a look at metadata ethics opinions, which have focused on three topics with regard to metadata production.

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.

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.