A multi-part series on the fundamentals eDiscovery practitioners need to know about document review planning and execution
So far, in our three Fundamentals Series, we have covered the fundamentals of collection, of processing, and of early case assessment. We turn our attention now to the most time-consuming and expensive phase of an electronic discovery effort: review.
Numerous analyses have established that document review is far and away the most expensive discovery activity:
The reason for these significant costs is the irreducible need for qualified people to spend time looking at a significant number of documents to make nuanced determinations about their relevance, their privilege, and much more.
Regardless of whether the required hours of review work are concentrated in a small case team or spread among a large contract review team, the total number of hours required has the potential to be in the hundreds or even thousands. Even when using some form of technology-assisted review, the effort is still likely to be time-consuming and expensive relative to the rest of discovery. Moreover, the quality and consistency of all those hours or work must be ensured so that all relevant information can be uncovered, so that complete responses can be provided, and so that inadvertent disclosure of privileged or confidential material can be avoided.
To help you to meet these challenges, we’re going to break review down into five subparts and discuss each in turn:
We begin, in this Part, with what gets reviewed.
The first step in any review project is determining what materials are going to get reviewed, because the volume and composition of those materials will inform your subsequent decisions about who does the reviewing and how they go about it. Without a clear picture of the what, you cannot make an effective plan for the who and the how.
In this context, we are not talking about the kinds of source identification that take place during preservation and collection. Rather, we are talking about identifying what requires review from within the pool of collected, processed materials already loaded into an eDiscovery platform. Traditionally, during processing, this pool of loaded materials has already:
This will have left you with a pool of unique files, from the relevant time period, that could contain relevant information. Ideally, you will then have engaged in some of the early case assessment activities we’ve previously discussed to gather information about the contents of this pool to help you decide what gets reviewed and how best to go about it.
From this pool then, you must decide whether everything gets reviewed, whether only the results of certain searches and filters get reviewed, whether only the results of a TAR process get reviewed, or whether some hybrid plan is employed:
Whichever path you choose, you will also need to make determinations about the handling of families, threads, and near-duplicates to finalize your review set:
One of the most important factors in determining what gets included in your review set is the scope limitations and process decisions you negotiate with the other parties before, during, and after the meet and confer. It is common to negotiate agreements to limit the scope to specific custodians, to specific enterprise sources, to specific date ranges, to specific file types, and more. It is also common to negotiate over what searches should be run, what TAR process should be used, and other aspects of the review set identification process. The more scope limitations you can negotiate the less time and money you will have to spend on review, and the more process elements you can negotiate up front, the fewer decisions you may need to defend later.
Upcoming in this Series
In the next Part, we will continue our discussion of review fundamentals with a look at what you’re reviewing for and who’s doing the reviewing.