Getting the Most Out of Managed Review Services: Protocol Writing 101
Using the managed review services of a third-party service provider is a great way to cut costs and meet discovery deadlines, but in order to get the most valuable and usable final data set, it is important to provide the document review team with a protocol designed with your end goals in mind. A well-drafted protocol will set clear guidelines on what type of documents are responsive, define the issues the reviewers are to identify in the documents, pinpoint the particularly important or “hot” documents and describe the preferred method for handling corrupt or unreadable files, foreign language documents and any other type of document that a reviewer would not be able to code.
Generally, a document is responsive if it is relevant to the litigation. While this may seem obvious, it is important to communicate to the document reviewers what “relevant” means to you for the particular case at hand. For example, let’s take a product liability case in which red chairs manufactured by ABC are allegedly causing injuries by breaking while bearing weight in excess of 50 pounds. We can all agree that an email about the ABC employee picnic is nonresponsive and an email about a suspected design flaw in red chairs is responsive, but what about an email discussing a customer complaint of a blue chair cracking when bearing a weight of 130 pounds? Are all chair problems responsive? Are only red chair problems responsive? You can imagine many more questions that could arise from the hypothetical and see the importance of clearly established guidelines for responsiveness. Failure to provide these guidelines will likely result in irrelevant documents cluttering your data set or relevant documents being excluded from your data set, neither of which is desirable.
When you are searching for documents in your data set in preparation for depositions or trial, it is often helpful to be able to sort them based on a specific issue. Identifying and defining issues can be an ongoing process, especially if you are somewhat unfamiliar with what the data contains. You want your issues to be defined narrowly enough to be meaningful, but not so narrowly that you have an unmanageable amount of them for the reviewers to tag and for you to work through later.
Most clients like to use a tag to capture both the most helpful and the most damaging documents for their case. Often, this tag is labeled “hot” or “hot documents.” It is quite important to define for the reviewers what “hotness” means, or this tag will quickly lose its effectiveness. Hot tagging can simply be a single tag for both helpful and damaging items or two separate tags, something like “Hot-Helpful” or “Hot-Good” and “Hot-Damaging” or “Hot-Bad.” Regardless of how you decide to label the tag, a hot document designation will give you the ability to examine the key documents first and quickly pull them from your data set.
Finally, it is important to be able to separate out documents that cannot be tagged for responsiveness because they are unreadable to the reviewer. This can be done in various ways from applying one tag for anything unreadable to inserting multiple tags for each type of situation that might render a document unreadable. It can be helpful for the purpose of going back and trying to restore the document to know what the issue is, as a fix for a document written in Chinese is different from that for a document that is so tiny it is illegible.
Let your managed review team do the heavy lifting, but do not send them in blind. By spending a bit of time creating a clear protocol that reflects your end goals, your resulting data set will be much more useful. You will be able to isolate specific types of documents more easily, and you will find the documents you are looking for faster when preparing for deposition and trial.