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What Is The Purpose Of Legal Document Review and eDiscovery?

Posted by Jeremy Greer | Fri, Sep 11, 2020

Document review is a well-known phase of the litigation and legal process. To come to the truth in dispute resolution, parties are permitted to request relevant documents.

And to meet requirements pertaining to the request, the producing party must comb through collected data. Nowadays these files often come in electronic form (electronic documents) and can be particularly cumbersome and unorganized.

If only there were a better way! Read on to understand the evolution of legal document review and eDiscovery - as well as the tools that exist to lighten the load for document review attorneys.

What are email PSTs and why do they matter?

An email PST is a file that stores emails on your local computer. Depending on the mail client being used, they can be a single large file or multiple smaller files.

PST files are helpful because they provide a backup of your email data and can be opened without an internet connection.

Email PSTs are commonly asked for in subpoenas, and in the case that specific actors have not deleted email over long periods and built up heaps of data, the strain on document reviewers can grow particularly burdensome. This leads to higher data hosting fees and longer hours for which reviewers need to be assigned for each project.

What is document review in litigation?

In litigation, the attorney will be assigned a project to work on by their firm. The attorney will then need to go through all of the documents that have been collected and determine which ones are relevant to the case at hand.

After that, the attorney will need to read through each document and take notes about any information that could be useful for the case. This process can be very time-consuming, so it is important to have a good understanding of the law and legal procedures.

What is eDiscovery?

eDiscovery (electronic discovery) refers to the process of collecting, reviewing, and producing electronic data in response to a discovery request in a lawsuit or government

The purpose of electronic document review is for attorneys to meet their legal obligations when the opposing party requests relevant documents for litigation. eDiscovery has a standard accepted process outlined by the Electronic Discovery Reference Model (EDRM).

The EDRM is an established framework that outlines standards for the recovery and discovery of digital data. The EDRM is designed to serve as guidance for gathering and assimilating electronic data during the legal process, including criminal evidence discovery.

While careful consideration should be taken at every stage, the bulk of the work and costs are typically associated with reviewing individual documents and the review phase specifically.

Why do we even review so many documents?

The answer to this question has two parts. First, we have to understand the rules of civil procedure. Second, we have to understand how those rules are being interpreted by the courts.

Federal Rule of Civil Procedure 26(b)(1) states that parties may obtain discovery regarding "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." The rule goes on to say that "relevance" is construed broadly to encompass "any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case."

In practice, this means that attorneys will often request very broad categories of documents, such as "all emails sent or received by XYZ Corporation from January 1, 2010 to December 31, 2010."

Obligations outlined in the Federal Rules of Civil Procedure inform attorneys that all relevant documents must be produced, but some relevant documents may be withheld if protected by some form of privilege.

Once all the data is ingested into an eDiscovery tool the review attorney can use early case assessment tools to comb the data and prepare for the “meet and confer” conference. This conference is an opportunity for parties to convene and discuss ESI (electronically stored information) protocol and eDiscovery-related law, and nail down the scope of the investigation which may inform certain filter criteria.

What is eDiscovery document review?

The document review process involves finding responsive documentation to produce and protected documents to hide from opposing counsel. Revision is iterative learning and means you revisit or refine.

Then, the legal team uncovers truthful issues in the case and develops strategies for legal action based on information found in the documents. A forensic team must limit the amount of information that can be reviewed using specific collection filters and culling methods before completing a manual review as often as possible.

In doing so, law firms distinguish relevant data from irrelevant data. 

Who ends up doing all the work to review documents?

Document review should be overseen at a high level by the attorney but can often be managed more closely by litigation support professionals and paralegals on the legal team. The role of a document reviewer is to operate eDiscovery software and utilize its sorting, search, filtering, and batching capabilities to help attorneys meet their requirements for document discovery and production.

A more senior paralegal or litigation support professional with experience will likely see their role expand beyond just the review phase to managing document collection as well as processing, organization, production export, and delivery. This impacts review costs and should be considered in your case budget.

What is a document review job?

There are many important considerations during a review project. Exact workflows vary based on the case at hand and individual preferences, but there are several considerations and goals consistent across most review process projects.

Document review jobs are often temporary contract positions filled by attorneys, paralegals, and litigation support specialists who read and process multiple documents as the review team.

What does it mean to review a document?

When an attorney or paralegal reviews a document, they are looking for relevance and responsiveness. They must determine if a review document is relevant to the case at hand. This definition of relevance is determined and agreed upon by both parties.

To accelerate the search for responsive documents, review attorneys often create keyword lists and use other filtering techniques to narrow down the selection of the review projects.

Relevant documents

Relevant documents vary by the specific of the case at hand. They can include medical records, insurance policies, internal product evaluations, testing, receipts, records of repair, accounting, and investigations. This should exclude privileged documents.

How to do document review

When creating and negotiating keyword lists amongst other criteria for your review projects, we highly recommend testing your assumptions on real data. Document review tools include a "tagging" or "marking" functionality.

Each document should be assigned one mark which represents its level of responsiveness. You should also consider that when creating your search terms you may contend with misspellings, code words, and jargon. 

Privilege review

Privileged documents and information may be withheld from production, and eDiscovery tools have specific mechanisms to facilitate meeting legal obligations for declaring privilege on individual documents.

If a document is determined to be privileged, a privilege type mark can be applied to it and the tool will encourage or require the document reviewer to fill out a corresponding privilege log entry for that file.

Confidentiality - Protective Order agreement, redactions, etc.

Federal rules of evidence 502(d) allows parties to enter into a clawback agreement by which either side can return privileged documents that were produced inadvertently. Reviewing for confidentiality is paramount when dealing with valuable client data.

“Attorney's eyes only” is a common designation that can be applied alongside a produce type mark to signal confidentiality to the other side. Specific allowable protective order designations should be agreed upon prior to beginning the review phase.

Redactions are also available to reviewers in an eDiscovery tool to cover confidential information such as social security numbers or other private content.

Protecting privacy during discovery

Privileged information is information that is protected by a confidential relationship recognized by law, such as attorney-client, doctor-patient, etc. 

In some cases, it is possible to demand the documents be returned and stricken from the record, but, as attorneys often say, “you can’t unring a bell.” That’s why it’s so important to protect privilege during a review, so you don’t accidentally hand over (inadvertently disclose)  information to opposing counsel that they don’t otherwise have a legal right to. 

What is a document review tool?

Review capabilities can be expanded or limited by legal document review software. For example, instead of reviewing documents one at a time, filtering and keyword searching will speed up the process of finding the most relevant documents.

Ultimately document review tools allow users to get to the heart of their matter and document review project more quickly.

There are a variety of document review tools available to help attorneys with the task of reviewing large quantities of documents. Some common features of these tools include:

-The ability to search for specific terms or concepts

-The ability to tag or flag documents for further review

-The ability to create summary reports

-The ability to export data in a variety of formats

The content we review: components of files

ESI can review almost every aspect of our document review process if required. Unlike paper where you have the content only visible by reading the page before, ESSI has several components. 

The component can include information that is readily available, like text and images. The components can also include information we don't know or are hidden by us, like the metadata of spreadsheets or the fragments of data on hard drives.

Creating a document review plan

To evaluate a process and determine its effectiveness, many organizations create review guides. The guides should explain the facts of the case, the searches used and the codes used when identifying responsive, nonresponsive, privilege, and other determinations. 

First, you will determine how information was collected, whether by a client, vendor, or responding party. That’s how you will find out how information is formatted and organized before you attempt to review it.

Next, you will document your search and review procedure. Make sure to provide details of any software used in review, how you allocate sets of data, and any use of predictive coding or TAR methods.

Develop a quality control program and stick to it! Then you can create consistent coding or tagging sets that fit the needs of the specific case. 

Coding screens typically contain data fields for responsive or non-responsive, privileged, confidentiality levels, and “key” documents. Use these to evaluate the search capabilities of the review database.

As you plan, make sure you determine the final output formats and production to outside parties. Additionally, make sure that a privilege log can be generated for documents coded as privileged to ensure confidential and redacted documents are specially recognized and properly handled.

How do document review tools help make the document review process more efficient?

Document review attorneys have their work cut out for them. Document review tools help make the document review process more efficient. They save time and effort by automating repetitive tasks, such as filtering and sorting documents. 

 

In addition, they can help identify relevant documents more quickly by using keyword search and other features. Ultimately, document review tools help attorneys get to the heart of their matter and document review projects more quickly. 

Getting Started with Digital WarRoom

Make your document review process simpler and accelerate document reviews using Just, Speedy, and Inexpensive eDiscovery software. Schedule a demo with Digital WarRoom today using our calendar link in the header or contact us at info@digitalwarroom.com.

Topics: Glossary

Written by Jeremy Greer

Jeremy believes in making eDiscovery accessible for everyone and creating publicly available educational content. You can find him exploring National Parks, watching Seattle sports, or sitting in the yellow booth on the Bainbridge Island ferry.

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