Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Document reviews for relevance and privilege are time-consuming and often done without a proper management plan in place. Often, in an attempt to save money, a paper-based document review process is set up, with a few dozen lawyers and legal assistants sitting in a room going through hundreds of boxes. When this review is complete, hundreds of thousands of pages have been photocopied, many of them multiple times. Pages are littered with Post-It notes, colored flags, pink and green “start” and “stop” sheets, and issue coding sheets. More than likely, tens of thousands of dollars, perhaps more, of attorney work product are spent on this mountain of paper. This process may work for smaller collections but can prove disastrous on much larger ones. A litigation team at Crowell & Moring was recently asked to collect and review for production about 1.5 million pages within 90 days. We concluded that the only way to complete this request on time was to review the documents electronically, reviewing images with an attached e-coding form: About 75 percent of the collection would originate from the current electronic files (e-mail, word processing, and spreadsheets) of our client’s employees. Before collecting the first page, we met with document processing vendors and staff from our client’s IT department to plot the entire process. We created a written Document Production Management Plan, which morphed a bit over time but proved invaluable as a starting point. Having this plan made us review with the key personnel every step of the process, from document collection to shipping documents to opposing counsel. Even though the collection more than doubled in size, to four million pages, the plan’s built-in room for expansion allowed us to complete the review by the original deadline. Based on our experience, we offer this advice for other firms undertaking an electronic review. VENDOR SELECTION First, you need to decide on technically qualified vendors to perform document-processing services. Our document collection consisted primarily of electronic files but had approximately 700,000 pages that required imaging. A number of vendors perform document imaging and coding services, and others perform electronic file conversion (converting e-mails and other electronic files to images and corresponding full-text and fielded data for loading to a database). Some perform both services. Weigh the value of having all document processing handled by one vendor versus coordinating the efforts of two or more. Interview document-processing vendors to determine their technical qualifications, processing procedures, quality assurance procedures, quality guarantees, and production capacity that can be dedicated to your project. Find out if the vendor has worked with the same types of electronic files generated during your project: e.g., does the vendor have extensive experience with converting Lotus Notes or Exchange mail systems, or both? Once you have decided on a document-processing vendor, begin to include them in the planning phase of collecting and processing the electronic files. This will help ensure that they can begin converting electronic files as soon as they receive them. If possible, provide them with sample data while “live” data are being collected from the client. REVIEW SOFTWARE Our selection of review software turned out to be perhaps the single most important decision we made. We developed a list of requirements for our review software, including ease of installation and maintenance, ease of use (can lawyers learn it quickly?), ease of customization, rule creation, and reporting features. We evaluated our existing litigation support database, as well as several other products. After this review period, we decided on Virtual Partner from Daticon. I can’t say that the database was easy to maintain, but this task is handled by litigation support staff, not lawyers, and the maintenance issues were far outweighed by the product’s many valuable features. Our lawyers found the product very easy to use, and training was often completed in five or 10 minutes. The review screen used radio buttons for single-selection fields (e.g., responsive or nonresponsive) and list boxes for multichoice fields (factual issues). The only field open for free entry was the attorney comments field. Customization was essential. The product demonstrated to us was close to what we needed but not quite there. Daticon developers were able to change some of the look and feel of the e-coding form to make it easier for our review team to use. We also required a product that would allow us to create coding rules. For example, documents coded as responsive had to have other elements coded, such as significance and issues, while documents coded as nonresponsive required no additional coding. Establishing these rules and having software that forced the reviewers to code certain information made, we believe, an end product that was more consistently reviewed with fewer errors and omissions. A large-scale document review is a production project. As with all production projects, progress statistics are a requirement. Senior attorneys and the client routinely want to know the status of the review, including the total volume of documents or pages reviewed or produced to date, in the last week, or the last day. We developed an automated system within Virtual Partner that allowed us to create daily production reports. These reports were used for client updates and staffing decisions. PRIVILEGED DOCUMENTS Early on, we knew we would face the challenge of properly identifying privileged documents. This task grows more problematic with the volume of documents, the amount of duplication in the collection, and the number of reviewing attorneys. A detailed document outlining privilege issues was created and distributed to each team member. Since the release of privileged information is both embarrassing to the law firm and highly detrimental to the client’s best interest, we decided to leverage technology to further reduce the possibility of inadvertent release. Because the data from the electronically converted documents contained the full text of each document, we decided to OCR all imaged documents. This created a full-text searchable database of all documents. A query of key terms was performed against all documents designated for production. The key term list (attorney, privileged, confidential, and others) was created to target documents with a higher probability of being privileged. Before production, documents responsive to this last-check query were reviewed again by a senior attorney. We feel that this additional process greatly reduced the opportunities for inadvertent production of privileged documents. No case waits for the document review to be completed before interviews and motion practice commence. Normally, while some attorneys are reviewing documents, others are poring through the same boxes looking for documents relating to particular witnesses or topics. In a paper-based review, no one has access to the work product (issue coding) captured on the coding forms. By integrating the review coding into the bibliographic coding and full-text data, we had access to fully searchable work product within seconds of the document being coded. This greatly enhanced our ability to respond to the twists and turns of the early stages of litigation. DOCUMENT PRODUCTION Another key feature of Virtual Partner is its document-production tracking module. Based on a query (in our case, documents coded as responsive), the software would electronically assign a user-defined Bates number to each image. The documents were then printed with Bates numbers and made ready for delivery to opposing counsel. For documents that originated in electronic format, this was the first and only time they were ever printed to paper. Because Virtual Partner stored the images and tracked the Bates numbers, there was no need to duplicate the production to maintain a master set of documents. Besides the enormous cost savings of not having to photocopy the entire collection, the space requirements were greatly reduced. The 2.5 million produced pages, if kept in paper form, would have filled 835 boxes. Our master set never left the server they were stored on. INTERNAL COMMUNICATIONS Another key decision to make early on is how the senior attorneys disseminate information to the document review team. Throughout a document review, the issue codes may change: some added, others deleted, and others further clarified. The “rules” of responsiveness may change or become further clarified. In order to maintain continuity in designations made by reviewing attorneys, each decision made must be disseminated simultaneously to each reviewer. This seems like a mundane part of the process, but you must establish a system that ensures that every document reviewer is working from the same set of review rules. Otherwise, the end product may lack consistency and database searching will be less reliable. It’s much better to establish your communications system before commencing the review than after problems occur. We considered using e-mail, but then realized that many document reviewers have valuable insight into these decisions and that e-mail was not conducive to conversations regarding changing parameters. So we opted for the “big room” approach. All 60 document reviewers worked in a large room equipped with 60 networked workstations (each with a 21-inch monitor). Team members discussed each rule change and clarification. This was not the most technically advanced approach to group communication, but it worked. LOOKING BACK In retrospect, two early decisions enabled us to complete this large-scale project on time with a high degree of accuracy and consistency. The first was the documented project plan. Beginning the project with a detailed description of the end product and then documenting all of the steps to get there allowed our litigation team to make decisions based on the best interests of the client. We never felt that the volume of the collection was guiding our decisions on how to use it. The volume became simply a matter of scale: More documents meant more workstations and more reviewers, not necessarily more headaches. Also, the selection of a highly customizable, yet sophisticated, search and review software package can make all the difference. Like all document reviews, the early rules and issues in our case changed once the lawyers dug into the document collection and new patterns of issues and facts began to emerge. But the document review process was not affected by these changing parameters because the flexibility in the software allowed for quick modifications to the e-coding form and coding rules. We never had to go back and review a portion of the collection again because a new issue surfaced. Instead, we constructed queries to target those documents for further review. Subsequent use of the database, in preparation for witness interviews, has confirmed that we achieved consistency in document designations and issue selection. Robert Young is litigation support manager at Washington, D.C.’s Crowell & Moring.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.