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About the Bloggers

Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at jane@litigationbestpractices.com.

Litigation 101 for eDiscovery Tech Professionals: Document Review

February 01, 2013

By Jane Gennarelli

 

** This blog series is intended to introduce new eDiscovery professionals to the litigation process and litigation terminology. Click here, here, here, here, here, here, here, here, here, here, here, here, here and here to go to the first fourteen posts in the series.**

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In this blog series, we’ve talked quite a bit about discovery, and we’ve covered the first steps involved in handling documents – steps that lead up to the document review. As a litigation technology professional, you’ve probably assisted litigation teams in the review process.  You might have helped to select, set up, and maintain review technology applications, or to supervise document review activities.  Your focus has probably been on technology and monitoring project status.  It’s important, however, that you don’t lose sight of the objectives of the document review, and that you understand the challenges that come with the territory.  Keeping these things in mind will better enable you to make valuable contributions to the document review effort.

Objectives:  The primary objective of a document review is to select documents that are responsive and must be produced, and at the same time to ensure that privileged documents are not produced.  The litigation team might establish secondary objectives as well.  For example, they may choose to identify hot documents during the review and assign issue or topic codes to documents.  On one hand, it makes sense to do as much as possible in the review to get the biggest bang for your buck.  On the other hand, if you ask people to do too much, you increase the likelihood of errors and extend the time it will take to complete the review.  Suggest to the litigation team that they consider the size of the collection, the review team’s familiarity with the case, the complexity of the issues, and production deadlines when determining the scope of what you’ll ask a review team to do.

Challenges:  The litigation team wants document review work to be high quality and consistent.  And of course, they want it to cost as little as possible. These requirements can be difficult to meet because of the typical challenges that are inevitable, especially on a big project.  Two of the biggest challenges are:

  1. It’s necessary to use a large review team that includes attorneys who are not familiar with the case. If the case is complicated, it can be difficult to get people up to speed and to keep work consistent.   Work with attorneys to develop review criteria that is objective in nature.  Look at documents to be reviewed to ensure that the review criteria is a good fit.  Work with the litigation team to ensure that training is detailed and sufficient. Establish processes that ensure that litigation team members are reviewing a representative sample of work done by the reviewers.
  2. Things change.  Two weeks into the project you find out that the document collection is three times bigger than you initially thought.  Yesterday, reviewing John Smith’s documents was the priority.  Today it’s Jane Jones.  And so on… you’ve been there and you know what I’m talking about.  Make sure you have contingency and back plans in place for all the things that can change or go wrong.  Have a plan for adding people to the review team.  Have a process in place for re-prioritizing the collection.  Don’t be surprised by changes.  Expect them and have a plan in place to deal with them.

In next week’s post, we’ll stark covering what happens after discovery. Please let us know if there are specific litigation topics that you’d like to see covered in this blog series.

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.
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Comments

  • February 15, 2013 Doug Austin

    Here's the link to the case to which Jane refers: http://www.ediscoverydaily.com/2011/09/ediscovery-case-law-are-attachments-part-of-the-email-or-are-they-separate.html. While they required the producing party to produce specific attachments requested by opposing counsel, they noted that there should be meeting between parties to reach an agreement on policy regarding the production or withholding of email attachments and their format. So, I would say that best practice is to discuss and agree up front how to handle.

  • February 15, 2013 Jane Gennarelli

    Sorry for the delay in responding! I know that this has been an issue in multiple cases, and that in some it's been determined that attachments are to be treated as separate documents and in other cases they are not. Doug Austin authored a post on this here in the eDiscoveryDaily Blog: http://tinyurl.com/45xb3pr. Does anyone know of more recent cases where this has been an issue?

  • February 05, 2013 Yohan

    What about attachment files, such an email attachment. Do you know any case law that makes such a production mandatory ?

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