For What It Gets Reviewed, Review Fundamentals Series Part 2

A multi-part series on the fundamentals eDiscovery practitioners need to know about document review planning and execution

In “The Main Event,” we reviewed the costs and significance of review, as well as the question of what gets reviewed.  In this Part, we discuss for what that chosen set of materials gets reviewed.

In the first Part of this series, we reviewed the major decisions that need to be made to identify your review set from within your full, post-processing pool of de-NISTed, deduplicated, and date-restricted materials: everything vs. search results vs. TAR results, family group handling, email thread handling, and near-duplicate handling.  The next aspect of review to consider is for what your review set needs to be reviewed, including:

• Relevance and responsiveness
• Privilege
• Confidentiality
• Deposition preparation

Relevance and Responsiveness

When planning and executing a document review effort, it is important to remember that relevance and responsiveness are distinct things:

• Relevance, as defined by Federal Rule of Evidence 401, is a question of whether a particular piece of evidence “has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” And discoverability, as defined by Federal Rule of Civil Procedure 26, extends to any evidence that is both relevant and proportional.

• Responsiveness, in contrast, refers to whether or not a given piece of evidence is responsive to any proportional discovery request propounded by another party. The universe of responsive materials should be a subset of the universe of relevant materials.

Everything that is relevant may be helpful to you in understanding the underlying events, and you may wish to plan and execute your review with the intent of finding it all.  On the other hand, you might wish to focus your review more narrowly on just finding all the materials responsive to the actual discovery requests received.  It is also common to conduct review as a hybrid of these two approaches: applying a top-level tag for relevance versus non-relevance, while also applying request-specific tags to relevant materials that are responsive to one or more specific discovery requests.

Privilege

Reviewing for privilege is of equal importance to finding the relevant and responsive materials within your review set – both because attorneys have an ethical duty to protect client confidentiality (see, e.g., ABA Model Rule of Professional Conduct 1.6) and because inadvertent disclosures can lead to privilege waiver if reasonable steps to prevent the disclosure weren’t taken (see Federal Rule of Evidence 502(b)).  In addition to the standard attorney-client privilege and work product immunity, you may need to review for other privileges, such as the joint-defense privilege or the physician-patient privilege, depending on the case.

Confidentiality

In addition to privilege, you may also need to review for certain types of confidential information.  For example, disclosure of personally-identifiable medical information generally needs to be prevented to comply with HIPAA’s Privacy Rule.  If you are producing to a federal government agency, you may need to produce a second copy of your materials with confidential business information redacted to prevent disclosure of that information to others through FOIA requests.  If you are producing materials collected from within the EU, disclosure of personally-identifiable information may need to be prevented to comply with the GDPR and the EU-US Privacy Shield.

Additionally, it is common to negotiate a protective order allowing for the redaction of certain confidential personal information (e.g., phone numbers and email addresses for individual employees) or for the special handling of certain confidential business information to limit who can see it (e.g., trade secrets).  Materials subject to such an order will also need to be identified during review.

Deposition Preparation

Later in the discovery process, you may also be reviewing documents – both your own and those produced by other parties – to prepare for depositions.  Document review for deposition preparation is different from document review for production.  In this context, you are generally re-reviewing materials that have already been determined to be relevant, non-privileged, etc., and you are reviewing them in more detail to create a physical or virtual “witness binder.”  Such binders may include a chronology, lists of key topics and details, potential exhibits, and more.

Upcoming in this Series

In the next Part, we will continue our discussion of review fundamentals with a look at who does the reviewing.