Do you know what “best practices” you should use to prepare for a review before it begins? In our first post of a 2-part series on document review, we’ll share with you the initial steps to prepare for document review projects that will help you avoid delays and additional costs.
There are several objectives during document review. First, attorneys must review and determine whether any documents are relevant to the case and responsive to requests for production. Second, attorneys must identify any documents that are privileged, or that contain attorney work product or other protected sensitive information, and ensure those documents are not produced or are produced with redactions. Third, for documents that are responsive, but which also contain protected information, attorneys must redact the privileged or sensitive information prior to producing such documents. Documents that are either withheld from the production because they are wholly privileged or are redacted prior to production to protect privileged information will be logged in a privilege log. Fourth, documents that are crucial to the defense or prosecution of the case need to be identified. Lastly, documents produced by other parties will need to be reviewed and perhaps categorized in ways that are useful to the case team.
Document review may be approached in different ways, depending upon the needs of the case, the resources that are available, and the format of the documents to be reviewed. To be efficient and effective, document review must be conducted in a systematic and organized manner. Here we explore the mechanics of document review, the roles and responsibilities of the document review team, and some best practices involved in coding documents that lead to successful outcomes in document review.
Roles and Responsibilities
Successful document reviews begin with careful planning. Before starting the review it is important for the case team to meet and identify the scope and nature of the review, prepare a schedule, and coordinate the staffing, flow of work and lines of communication. It is also necessary to build into the review a process for performing quality checks to ensure consistency in coding decisions.
The roles of the key stakeholders associated with a document review project will vary from case. First, there will most certainly be a lead attorney—typically a senior associate or partner—who will establish the overall scope, objectives, and deadlines of the review. The lead attorney or their associate will develop guidelines for the review, oversee daily progress, answer substantive questions from reviewing attorneys, and ensure documents are reviewed and coded accurately and consistently.
Second, to aid in the efficiency of the process, many document reviews involve a team of contract review attorneys. These document review attorneys can be provided by companies like Strategic Legal Solutions that offer Managed Review Services. The Managed Services consultant will also provide an attorney project manager. The review attorneys are primarily responsible for examining and coding documents pursuant to the guidelines established by the lead attorney.
Lastly, as discussed above, there should also be a project manager (PM). The project manager is an attorney who will oversee the day to day aspects of the review and will be the primary contact for all stakeholders. The PM will be responsible for managing the performance of the contract review attorneys, which includes attendance, productivity, accuracy and overall value to the project. The PM is also responsible for preparing and delivering status reports for the stakeholders, as well as assembling all the relevant project documentation that supports the defensible nature of the review.
Defining the Scope of the Review
The case team should first develop clear guidelines for determining a document’s responsiveness to discovery requests. It is helpful to reduce these guidelines to writing in a document review protocol or memorandum.
Additionally, to maximize team understanding of the document review process, the entire review team—the case team attorneys, the review attorneys, and the Project Manager should discuss the facts of the case, the nature of the claims and defenses, the scope of the review, and any guidelines that govern the review. The more the review team members know about the facts and issues of the case and the legal strategies of the parties, the better they will be able to understand and implement effective document review procedures. To ensure a high level of understanding, members of the review team should also familiarize themselves with the pleadings, requests for production of documents, and any confidentiality orders or stipulations in place. Names of key individuals, significant events, and types of important documents should also be discussed.
A firm understanding of the key issues and case strategy will strengthen the review team’s ability to discern relevant and responsive documents. It will also help identify documents that may not be responsive to a document request but which, nonetheless, should be marked important for the purposes of building the case or responding to an adversary’s arguments.
In the end, document review is a collaborative and iterative effort. It is imperative that everyone on the team – both the case team and the review team – have the same understanding of and approach to the review. Some best practices for maintaining organization and the orderly flow of information during a document review are:
- Hold regular brief conference calls or meetings (i.e., daily, weekly) with the review team to address questions or concerns, or to provide additional instructions;
- Create an email distribution group list for the entire review team to use for efficient communication during the review;
- Communicate regarding issues that have arisen so that all reviewers are aware (e.g., how certain documents are to be handled during the review).
With these preliminary planning steps, the document review team will be prepared to begin reviewing documents. Next time we will take a look at the actual mechanics of document review.