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Collaboration is more important than ever to achieve cost-effective, efficient discovery. The e-discovery industry offers impressive technologies, skilled technologists, and a plethora of knowledge on how to conduct e-discovery well. Without collaboration threading the pieces together, e-discovery costs can spike and potential issues abound. We talk about collaboration a lot, but how do we do that when review gets busy? As Geof Vance, Rachael Philbin, Tony Baskin, and James Jansen laid out in a webinar on document review, there are many key considerations for successful document review detailed below. The thread of collaboration runs through these.

1. Invest in fact-gathering and early communication.

Start collaboratively! Have conversations with as many technologists, attorneys, and IT professionals early to determine who can best assist with key components of preparing for and executing review. Specifically, consider compiling a team of key people who can individually:

  • Provide information about the data for review, such as key custodians and data locations.
  • Ensure the review and discovery plans consider proportionality.
  • Define data collection recommendations, including whether data must be preserved versus immediately collected. If data has been collected or searched, understand what tools were used to search and what steps were taken to search data. Sometimes, it may be prudent to recollect data to execute the requisite search parameters to pull a complete set of documents for review. Programs may index documents differently, which can cause different documents for review.
  • Consider the technical and legal aspects of discovery stipulations.

Take the time with this team to understand what is already in the document set, how it ended up there, and how this impacts both later review and overall review and discovery costs. If discussions later unearth that some data was not appropriately identified, consider whether there are other areas that require further discussion.

2. Use technology to its fullest potential.

Gather the technologists and attorneys together to present the unique matter issues and discuss the potential technology solutions. Confirm that everyone on the team understands what is possible. After everyone is clear about possibilities, select the right technology to meet matter security, scale, and customization needs with proportionality in mind. Maximize the technology workflows available with the selected technology to organize and structure review efficiently; do not leave technology features on the table if they will help make review more efficient and cost-effective  For example, consider using structured analytics in some form for all matters.

Other specific suggestions that panel offered include: employ email threading to reduce review of redundant email thread content, use domain parsing to remove non-responsive content, and cluster opposing party productions.

3. Clarify special review considerations.

Ask the right questions of the technology, the technology professionals and attorneys early in the planning phase to determine if special review workflows will be required later in review. Consider these questions:

  • Do the International Traffic in Arms Regulations (ITAR) apply to your data?
  • Will there be a source code review?
  • Do you anticipate having to pull data out of a proprietary software program?
  • How will time zones factor into your review and discovery plan?
  • Are there documents in foreign languages that require review?
  • Are there privacy considerations?

Determine whether special workflows or review attorneys with particular skills will be required. Discussing how these workflows will be managed will prevent bottlenecks, conserve costs, and allow more time for unanticipated issues.

4. Focus on quality control.

As with all phases of discovery, plan early and then be flexible as QC proceeds. Establish clear communication channels and responsibilities. Encourage review teams to discuss ideas and question review instructions. This may sound like it will take time. It will. It will also open up channels of communication between managing attorneys and review attorneys that can affect how QC proceeds. For example, additional privilege search terms or key documents may be unearthed. Be sure that a good system exists to surface these efficiently.

Incorporate technology into your QC process as much as possible. Consider using analytics in QC processes to leverage technology to support human review. Use standard features of review platforms, such as near duplicate document identification, to QC privilege documents. Plan to revisit QC plans as the review progresses to determine what adjustment must be made. Document QC plans as they progress and are completed.

5. Run post-production analysis.

Take the time to collaborate with key team members to recycle helpful data and decisions, gather metrics, and incorporate lessons learned. Lead a meeting to debrief what went well and what could be improved. Assign team members to make updates to templates or lessons learned memos on a rotating basis. Lessons learned could include updates to workflows, redefinition of roles or new roles, or an analysis of where technology worked well and where it could be improved or used differently.

 

Helen Stocklin-Enright is the development manager for Perkins Coie's E-Discovery Services & Strategy practice. She manages implementation of technology and operational initiatives within ESS, focusing on the strategic application of technology to conserve costs and enhance efficiencies.