There is no Substitute for Boots on the Ground

I have been managing electronic discovery projects large and small for many years, and a recurring theme is litigation counsel’s surprise at how helpful the front line document review team can be to the substantive aspects of the litigation.

To put this thought in context, our law firm often serves as “discovery counsel,” while other law firms serve as “merits counsel” (the firm that handles all other aspects of the case, including trial).  The work is bifurcated because lawyers that specialize in electronic discovery can often do the work better, faster and cheaper than general litigation lawyers due to the increasing complexity of electronic discovery law.    

So back to our topic: following the identification, preservation and collection of relevant paper and electronic files, there is typically a document review phase.  Worthy of note, when I reference document review, I am not speaking of old-fashioned (and expensive) linear review of every document that may be relevant.  Technology is effective at slimming down the population of documents that need to be reviewed.  However, at the end of the day, technology will have helped us identify a set of documents (albeit smaller than the original data set) that someone needs to analyze.  I will write soon about how we leverage technology, e.g., search terms, concept searching, email threading, predictive coding, and near-duplicate identification and others to slim down the review set, maximize accuracy and cut costs.  

Document review is not glamorous work.  It involves teams of attorneys, and, in some cases, non-attorney-professionals, looking through a large volume of documents to identify documents relevant to the litigation. 

At the outset of an engagement, merits counsel typically expects our review team to separate the wheat from the chaff – to tag documents as responsive, privileged or non-responsive and apply category codes that correspond to broad themes in the litigation.  That is often the extent of the expectation.  But a properly trained and managed document review team delivers much more.

Of course, the work quality of the front line review team is only as good as the management and training they receive.  Developing and implementing best practices for document review supports a well managed team.  This is another reason that a practice group like ours – focused on document review and eDiscovery – works better faster and cheaper than our teammates who need to attend to all the other moving parts in a complex piece of litigation. Best practices for training and integrating a review team with merits counsel is a topic for another article. 

In addition to delivering high volume, high quality, low cost and on-time document review, a good document review team provides information. That incoming tide of information from the documents starts soon after the review starts.  Integration between merits and discovery counsel involves regular meetings and telephone calls with merits counsel and the document review team representatives to ensure questions are answered as they arise.  In the initial meetings the information flows from merits counsel to the reviewer team.  The review team asks questions and the litigation team does most of the talking.

However, something interesting happens a few days into the project.  The start of a document review is like a light being switched on in a closet.  Merits counsel has a pretty good idea what should be in the closet, but there are always unexpected finds.  As the review team starts analyzing documents, they identify key documents, email chains, and reports that allow the combined team – merits and discovery counsel- to challenge or confirm early assumptions and raise new issues in the litigation.  Search terms are added based on a more granular understanding of how custodians communicate.  Requests for Production of Documents and Interrogatories are amended.  Custodians or data repositories are added to the list of data sources slated for collection.  Merits counsel often selects a group of review attorneys to put together deposition preparation notebooks, timelines and other documents to aid in litigation preparation.  The dynamic changes – now the tide of information is flowing from the document review team to merits counsel, and merits counsel is asking the questions and the review team is doing the talking. 

The document review team is on the front line.  After a week or two of reading email and documents, they will know the overall document set better than most of the client employees.  A good document review team is able to communicate that understanding to the client and to merits counsel cementing the link that makes this team effort a success. 

Another thought: spending a day in the room with the people who have read the email of the employee whose deposition you are defending is time well spent.  Try your theory of the case on the review team.  They will likely be able to tell you more in thirty minutes than an associate who pokes through documents between meetings or telephone calls.

Next – tips for integrating the document review team and merits counsel.

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