Document reviews are deceptively complicated. In theory, the other side serves a document request, you search your documents, have attorneys review the documents you identified and your vendor produces the materials responsive to the request. In practice, document review can be a trap for the unwary.
Leaving aside the complications created by immense amounts of computer-generated data, document review can quickly devolve into squabbles with adversaries and a morass of mistakes. Many of the mistakes that fill the pages of casebooks can be avoided by:
- Coming to an agreement with opposing counsel early as to how document discovery will be handled
- Documenting your search and review procedures
- Checking the accuracy of your results and supervising your vendors
Agreements with opposing counsel
Most discovery disputes can be nipped in the bud by reaching an agreement with the other side about methods for identifying and producing documents, as well as dealing with foreseeable hiccups in the process. This type of coordination is not just recommended by the Sedona Conference and other commentators, it is required by the Federal Rules of Civil Procedure and state procedural codes.
Early agreements on relevant custodians, time periods, sources of data and search terms can streamline discovery, reduce costs and focus the parties on the real issues in the case. It also provides cover if the other side comes back later and criticizes your document production.
Most importantly, it allows you to show the court that you have been open and transparent in providing discovery. If the other side believes that you should produce more documents, then you can argue that the court should shift the costs of review to your adversary, or at a minimum impose some type of cost sharing.
A word of warning about agreements on search terms: You will be held to your agreement. Before you commit to running a set of search terms and reviewing the results, know what you are committing yourself to. The court will likely reject your argument that it is too burdensome to review hundreds of thousands of documents when you participated in drafting the terms.
Also consider agreements about how the litigation will be conducted more broadly. Clawback agreements for dealing with inadvertently produced privileged documents and protective orders for confidential business documents are critical elements of your early discussions and negotiations with counsel.
Courts have begun demanding very detailed explanations of these processes when they are asked to make determinations about the sufficiency of document reviews. The single best way to avoid a complete document discovery meltdown is to put everything in writing. Your lawyers, litigation support professionals and vendors should memorialize every step of the process, including searches that were run, custodians whose data was searched, training materials for your reviewers, decision logs and production formats.
Each step in the process must be explained with sufficient detail to explain why the particular methodology chosen was defensible under the circumstances of that review. The better you can explain your process, the better you will fare before the court.
Check your work
Something always goes wrong during a large-scale document review. Documents that should have been excluded from the production get included or documents that should be produced somehow get left out. While some courts seem willing to excuse inadvertent productions, others take much harsher views and expect nothing less than perfect performance from counsel.
Start by asking questions of anyone and everyone involved in making the production, from the lawyers supervising the review, to your in-house litigation support staff and your vendors. The answers you get must make sense and square with your expectations. It is particularly important that you understand the mechanism by which privileged materials are excluded from the production.
Most document review systems have a set of trumping rights built in. A privilege tag must be properly configured to trump the relevance tag. If the vendor did not properly set the trumping rights, a privileged attachment to a responsive document could get inadvertently produced. A judge likely will excuse the inadvertent production of a handful of privileged documents, but if you fail to adequately protect your privileges by producing large swaths of protected materials due to carelessness, the judge will not be as understanding.
Similarly, before you make your production, it is a best practice to run a set of search terms designed to identify privileged material over the production set to weed out any potentially privileged material that may have slipped through. While the reviewers, in theory, identified all of the potentially privileged documents, a simple search for lawyers’ names and some other key terms can give you peace of mind and insurance against judicial criticism.
Lastly, make sure your production meets the commitments you made when you negotiated your response with opposing counsel.
- Did you run search terms over all of the custodians?
- Did you modify or omit any search terms?
- Did you add custodians or search terms to the review?
- Did you expand or contract date restrictions?
If documents were added to the review pool, consider at this point whether they truly need to be produced and discuss with opposing counsel why you increased the scope of the review. If you have not met your obligations under your agreement, take immediate steps to fix your production or be prepared to explain to opposing counsel—and potentially the court—why those materials are not necessary to the case.