© 2018 The Texas Lawbook.
By Martha Buttry Daniels of King & Spalding
(June 14) – Most litigation comes with the burden of document review. While not the sexiest of topics, document review is critical. When it goes wrong, it can be costly and embarrassing.
For instance, a federal judge recently ordered three major plaintiffs firms to pay an additional $800,000 for a now-$3.8 million investigation into excessive legal fees arising from document review attorneys’ apparent double-billing in a prior case. And earlier this year, Apple Inc. was fined $300,000 for missing a document production deadline by 12 days, despite growing its document review team from 115 to 500 lawyers.
Whether you are outside counsel handling a massive document review or in-house counsel managing external reviewers, these six tips should help ensure that review is as painless as possible.
(1) Make directions clear. You have been working on the case for a year – interviewing witnesses, reviewing strategy memos and pouring over key documents. You are even starting to dream about the case! But your document review team is brand new. They know nothing about the basic players involved, let alone the overall strategy. As you initiate the review, make sure your team members have all the tools they need to succeed. Is the case highly technical? If so, describe the complexities with a Wikipedia level of simplicity. Are the pleadings littered with acronyms? Provide a list of definitions. A review memorandum is essential, but timelines and casts of characters can greatly improve the review as well. Take every opportunity to educate the reviewers, which will help ensure they do not miss any key documents.
(2) Be available. A highly-motivated review team will produce better results. If you expect them to be reviewing 12 hours a day and on weekends, you need to be available to field their questions in real time. You should also be available to receive their suggestions, as they are the ones closest to the documents. Do they think you need another issue tag? Do they want more persistent highlighting? When reviewers feel like a meaningful part of the team, their work product will improve. Not only that, but their ideas might advance the overall objective of the review.
(3) Don’t forget the objective. Throughout the review, it is important to keep in mind the objective. If this is a review in advance of a document production, being mindful that privilege is key. Make sure you have time to make critical privilege decisions before the production deadline. If the review is supporting an internal investigation, be especially sensitive to personal information. Each document review has its own unique characteristics, so it is essential to always keep the objective in mind. And it is your job to make sure the reviewers know how their work fits into your overall goals for the case.
(4) Follow your gut. Stay engaged with the reviewers and follow your instincts. If it is a complicated review and one individual is tagging more than 90 documents per hour, you should be skeptical. If quality control reveals that one reviewer missed a key privilege document, it is worth the time to engage quickly and identify whether other privileged documents were missed. It may be a non-issue, but it could also identify problems that need resolving. Following your gut can help avoid a bigger headache down the road.
(5) Manage costs. Document reviews come with a litany of costs, not just the cost of attorney review time. Make sure you are versed in the different costs associated with the review platform. Is e-mail threading an additional fee? If not, make sure to use that function as it will reduce the hours spent on the review. Did opposing counsel produce thousands of irrelevant documents for which you are now paying a per gigabyte hosting fee? If so, you will need to weigh the cost of seeking relief from the court or arbitration panel. E-discovery costs can escalate quickly if you do not keep an eye on them. Staying informed and engaged helps ensure that you get the most bang for your buck.
(6) Think about the future. Always think about the future of the project. Are you running search-terms across entire email accounts? Keep track of those terms, as you may not remember them years down the road. Are you using different databases to house your production and the opposing parties’ productions? This could mean that later, when looking for a key document, you will have to run a search in two different databases. That might not be a big deal for one key document, but what if you are looking for 100? If you are reviewing documents for key issues but neither party has served deposition notices, it may still make sense to get a jump start on identifying witness-specific documents. Thinking long term will help reduce inefficiencies and avoid repeating work.
While these tips seem basic, they can greatly increase the value and efficiency of your document review. Staying mindful of the bigger picture will help you keep one step ahead of the opposition. Your client will thank you for it!
Martha Buttry Daniels is a Houston-based associate in King & Spalding’s Trial and Global Disputes practice. Her litigation practice focuses on resolving complex commercial disputes, particularly construction-related disputes in the energy industry. Throughout her career, Martha has supervised many document review teams (including attorneys from both King & Spalding’s Discovery Center and outside vendors). She has visited off-site reviewers to provide moral support; spent countless hours drafting review memoranda and identifying the perfect case-specific search terms; and immersed herself in the various document platforms to lessen review costs. She is an admitted e-discovery geek.
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