Preparing to Begin a New Document Review

Abby Rosenbloom and I decided to write a series of articles together related to the infamous world of managing a document review. There are no standards. There are best practices. There are personal preferences. There are lessons learned. I have known Abby for over 15 years. We have worked in different roles within the industry, but always seem to cross paths. It is fun to mind-meld our experiences on this topic.

Below is the first article and here's a link to the second article, Effective Use of Coding Panels.

You have collected, culled, categorized, analyzed, and still have thousands and thousands of documents left to review. The document review attorneys are ready and all that needs to be done is to determine relevance, privilege, and confidentiality. Below we will discuss how to make certain you have prepared the review instructions and given the reviewers all the information they will need to be effective and efficient.

The document review team needs to be educated on the case and the case strategy. Case background is important, but so is where the legal team hopes to go with the case. The document reviewers spent years in law school and have worked under the supervision of many different legal teams with differing instructions. Understanding the goals of the review will assist with the most accurate review outcome. The document reviewers should be able to tell you when the documents being reviewed are not what you thought they were. This gives you the opportunity to re-tool your searches or change direction.

Prior to the orientation meeting where the legal team shares information with the document review team, you should distribute a packet of information to the document reviewers. Depending on the complexity of the litigation matter, the review team may need a few hours to review these materials. They should be given the opportunity to make a note of any questions they intend to ask during the orientation meeting.

Provide a copy of the request for production or CID. It is helpful for the document reviewers to understand the context of the requests for which they are assisting in preparing a response.

Provide an overview of the tagging protocol as well as examples of correctly tagged documents. Provide samples of documents where you know there could be gray areas and outline why these documents should be tagged a particular way.

Provide guidelines for how to determine privilege. Every legal team has a different perspective on the art of determining privilege and some litigation matters require a more stringent or a less stringent need to identify privilege documents.

Provide a list of pertinent names, their roles, and what we know about these individuals so far. This helps provide context while reviewing the documents, especially email communications. There is a chance the review team may come across someone of a similar role they can bring to the legal team’s attention. The legal team may also make a request that documents relating to a particular individual are more sensitive.

Document review tags should be clear, concise, and ordered in a logical way. It is best if tags are grouped as the document reviewers will use them, or by category. Tags that do not follow a logical order are harder to work with and take time to find. Heavily used tags should be placed near the top of the coding panel. Avoid the use of scrolling down in the coding panel. Strive for the most minimal number of tags.

Make a decision on family tagging. Explain the family tagging decision for both responsiveness and privilege. In some litigation matters, the decision is made to perform document-level tagging regarding responsiveness and family-level tagging regarding potentially privilege (set aside entire families for the privilege review). In other matters, the legal team will decide to perform family-level tagging regarding responsiveness and document-level tagging regarding potentially privilege. Keep in mind that these family tagging decisions during the first-pass review will affect the steps needed during the second-pass reviews.

Persistent highlighting of key terms and privilege terms can be useful in a review. If possible, color code the highlighting so that the privilege terms are one color (typically red) and key terms are another color. Ask the document reviewers to provide feedback regarding inaccurate, high volume, or false hit highlighted terms so adjustments can be made.

Provide protocols to follow for questions. If a document reviewer feels a document is “hot” or they are unsure how to categorize a document, how should that be handled? Should questions include a reference to DocID, BegDoc, or Bates Number? This can depend on the review platform and whether the document review contains client documents pre-production or opposing counsel's production documents. Be consistent with expectations and procedures. Let the review team know who should be submitting questions, how the questions should be structured and how those documents should be tagged. Questions during the first 48 hours should be encouraged, and answered quickly, to get the review team on the same page as quickly as possible (thus resulting in a more accurate review outcome). It may make sense to include a “question” tag and then a text field to enter the question in the coding panel. The legal team can monitor for “question documents” behind the scenes by searching the database for the question tag. Another option is to add a “decision log” tag and a text field to enter the question in the coding panel. A team lead or document reviewer can be assigned to compile the questions into an Excel file outside of the review platform. This decision log “chart” can be distributed to the lead attorney on a daily basis. The lead attorney is asked to complete additional columns that provide the answer and the justification. The daily updated decision log is then made available to the review team. It can be helpful for the lead attorney to visit the review team in person every 3 or 4 hours during the first few days.

Provide protocols to follow for technical issues with documents in the review platform. One solution is to simply provide a tag that allows the document reviewer to tag a document they are unable to view for whatever reason and this allows them to continue reviewing without interruption to the workflow. Once the technical issue documents are resolved, a document reviewer is asked to review these documents.

If at all possible, try to record the document review training in audio or video format. This is helpful for the document reviewers to re-review and also for re-use when there is a need to add document reviewers to the team.

Provide software training on the review platform to the entire review team and offer 1:1 training to the legal team.

If at all possible, the best results occur when the document review team is located in the same room together.