Earlier, in May 2012, the head of Greenberg Traurig had to apologize to the open court for failing to produce important evidence that was not noticed by the lawyer handling the case. The important document was a part of an email attachment. The lawyer who was responsible, apologized and fumbled that she could not remember … and the opponents filed a suit related to ‘discovery’ and cried fraud and misrepresentation. Not a palatable situation for any law firm. But the situation would not have happened in the ordinary course of events if the rules and principles of meticulous document review and archiving were followed.
Today’s document review is not about simply taking notes or doing QC, the steps of the document review process has been thoroughly dissected by the industry, and modern document review consists of the following phases:
- Separate important documents from non-responsive documents and eliminate non-responsive documents from the pile before setting out to work.
- Tag all documents that are marked “privileged” or “confidential” or bears the names of counsels.
- Categorize documents into “responsive,” “confidential,” and “privileged” at the very least. Some important documents may also be tagged with other alerts like “hot doc.”
- Issue related tags are also used on top of common categorization so that documents related with particular issues can be quickly accessed.
- Create parent-child relationships between documents: a typical parent-child relationship would be an email and its attachment.
- Mark whether a document is a ‘parent’ or a ‘child,’ it is safer to treat and tag documents individually, as a ‘privileged’ email can contain an attachment which should not be privileged and vice-versa. Categorizing parent-child documents inconsistently can lead to terrible lapses like the Greenberg Traurig event mentioned earlier in this article.
- Set strategies and deadlines to complete the first tier review comfortably and with adequate resources at hand. With document reviews, it is absolutely necessary to avoid last-hour rushes.
- Form a full understanding of the underlying facts of the case, the issues including questions of facts and law, and the nature of potential and present discovery requests.
- Create a ‘case memo’ including a synopsis of the case and issues that need to be addressed.
- Create a review strategy and a brief review manual that can be referred back in case the project goes collaborative and others need to be involved.
- Separate all “Pleadings” properly tag them and establish parent-child relationships. Create a brief procedural history of the case to follow as a guide for finding documents and relevant content.
- Index all relevant discovery requests, responses, objections, orders and potential documents that may be called for discovery
- Create an inside and outside counsel list with contact details. Assign ownership of documents and include the information on notes with relevant documents as to the people who know most about those documents.
- Do not wait until you finish the entire process to begin Quality Control. Document review processes today often extend to thousands of documents. The QC must start as soon as the primary sorting of documents is finished and should continue parallel with the rest of the review process.
- It is important to check twice all documents that are tagged as “responsive” and “not privileged” because this is the area where the greatest numbers of errors occur.
- Prepare a ‘privilege log’ and substantiate the legality of withholding each document marked as privileged. The privilege log needs to contain sufficient information to identify documents and the rationale for withholding them.
- Create a ‘project journal’ so that if the document review is called into question you have sufficient and ready data to rely on. The project journal should contain – introduction, mention of all case materials, all project related questions and answers, timeframe and delivery schedules, error rates and QC methods adopted, privilege log and all redaction efforts.
By approaching the document review professionally, and by using the tools made available by IT, it is possible to carry out proper document review. Traditional and unsystematic methods can end in catastrophe, even affecting the license of an attorney.
As has already been established in Qualcomm Inc v. Broadcom Corp. 2008 WL 66932 (S.D. Calif. Jan. 7, 2008), attorneys now incur a significant personal liability when failing to produce documents responsive to a discovery request. The key to avoiding such situations are in creating a comprehensive document review strategy, both at personal levels and in collaborative efforts.
