Updated December 9, 2010
A paralegal or junior level associate may go through the repository to identify records known not to be relevant to the matter at all, suppressing them from further review, or deleting them from the database altogether. They may engage the help of a litigation support specialist or electronic discovery service provider to automate the identification of known irrelevant documents so that the reviewers don’t have to look at every single document.
Many electronic discovery tools provide automated methods for culling. When reviewing ESI, there is a diminished need for bibliographic coding (the process of capturing objective data from documents, i.e. date, author, recipients, title etc.) and entering it into database fields to facilitate the search and retrieval of documents. If not reviewing ESI, this level of review can be conducted by document processors, case clerks, paralegals, or outsourced to a service provider. When paper documents are converted to images, this level of coding is often necessary to facilitate search and retrieval. There is some debate whether or not OCR technologies provide enough full-text search capability to eliminate this step. Most feel, however, that some objective coding, along with OCR text is the safest way to ensure effective searches.
If the review team will be relying on a metadata and full-text search strategy, tests should be run on a sample of representative records to ensure its ability to meet the review objectives. Some documents lend themselves to an auto-coding process where the search engine has the ability to automatically recognize specific fields of information and will populate the appropriate field with very little, if any human intervention. How much coding is done, as well as the dependence on a degree of accuracy will depend again on volume, time constraints, and the case budget.
After culling irrelevant documents, the review team is ready to address the task of reviewing documents that need to be produced, (or that have been produced by opposing parties). In a large repository with several reviewers, this task is often divided in a logical way in order to meet discovery deadlines.
The documents may be simply divided up by volume such that each reviewer is reviewing a specific numbered range of records that don’t overlap with any other reviewers. In more complex scenarios, the review sets may be divided based on the source of the records, or a subset of records that meet search specifications for a particular key player or issue. The review assignments are then based on the importance of the source or key player, for example, with higher level attorneys reviewing the most critical key players’ records, and more junior level or paralegals reviewing less important ones. Many times the tool being used to conduct the review will dictate the best way to logically break the documents into smaller sets for review purposes.
To aid in an expedited privilege review, searches could be conducted for names of attorneys or law firms that would indicate a high probability of the result set being attorney/client privileged communication. The documents meeting the privileged search criteria could be assigned to an attorney whose task it is to review for privilege and mark the documents as such. Documents that are responsive to a request for production can be so marked. If possible, it is best to identify which request the document is responsive to, as you may to provide this information to opposing parties.
Further, documents subject to production should be reviewed for confidentiality or privacy requirements. If there is specific information that needs to be redacted, such as social security numbers, names, addresses, and phone numbers, a team of trained redaction specialists can go through the database, reviewing for this kind of information, and apply the appropriate electronic redaction marks and confidentiality stamps. The team’s ability to perform electronic redactions is dependent on the platform and format of the documents being reviewed. The number of redactions and how they will be performed is an important piece of the planning process when selecting the review platform and format of the documents loaded onto it.
The review team can capture documents that relate to key players and known issues in the case. Look-up tables can be developed to aid the reviewer to quickly pick from a pre-populated list of options or a database can be set up that contains a series of marks and/or tags to facilitate their categorization. Key players may also be identified by bibliographic coding if they are asked to capture all names in a document. Technology can provide an index of all key words, revealing the names of key players to drilled down on for review. Often times, an index can reveal the name of a key player hidden in the metadata of an electronic document versus anywhere on the document itself. This is one argument for collecting and indexing as much information as you can in native format.
It is imperative to know if foreign language documents will be included. If so, be sure to know your review technology’s method for handling them. Are they able to “read” that information and search it using its English translation? Will you need to find temp attorneys who speak that language? Will you do some level of translation in order to use them throughout the lifecycle of the matter?
Additionally, it is not just “non-English” documents that are at issue when handling foreign language documents. ESI that is captured from a UK organization or email exchanges with English speaking non-US affiliates may pose issues related to the spelling of common words and should be taken into account when searching and key word filtering.
If the application does not have the technical capability to support documents in a particular language, consider producing those documents as TIFF/PDF only.