Legal Operations

Why You Need A Document Review Protocol

Even back in the day when document review meant pouring through boxes of paper, the lead attorney surely had a plan, right?

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If you’re a lawyer working in legal operations or in a leadership or supervisory role, sooner or later you will find yourself overseeing a document review. What you do at the outset of the review will determine how smooth the review process is and how successful the outcome will be.

Have a Plan

Given the enormity of some document reviews, it is hard to imagine not having a game plan in advance. So, whether your organization is involved in serial litigation or you’re undertaking document review for the first time, whether you’re putting eyes on every document or using the latest machine learning or analytics tools, here’s a few thoughts on developing a document review protocol.

Before any document review, the legal team should identify clear guidelines for determining relevance and responsiveness. Issues of privilege may be involved as well. A document review protocol can be a complicated document or a fairly straightforward list of guideposts that provide instructions to reviewers. A review protocol usually takes the form of a memo. A typical protocol includes the following…

Background

Begin with a summary of the nature of the dispute, the parties involved, and the specific claims and defenses. Anyone preparing to review documents should at a minimum first review the operative pleadings, discovery demands, any applicable court orders or confidentiality/protective orders, and any significant correspondence in the case. These materials provide context to anyone who is not familiar with the case.

Scope of Review

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A document review protocol should outline the scope of the review. How many documents are to be reviewed? What is the timeline? What documents are we looking for? What does a relevant document look like? What is not relevant? This means identifying subjects and document types that pertain to the issues in the case. If, for example, it’s a contract dispute, then documents or communications involving negotiations, terms of the deal, interpretation or meaning of terms, may be highly relevant. It may also mean identifying documents relating to topics or issues requested by opposing counsel.

If there are any topics of particular importance — so-called “hot” documents — those should be defined in the document review protocol as well.

Keep in mind, too, that defining scope also means identifying things that do not fall within the scope — for instance, documents outside a certain date range may be deemed non-responsive. If there are subjects the document reviewer may disregard, those subjects should be identified in the protocol.

Coding Instructions

Specific coding instructions are essential to document review. Common coding designations are Responsive, Non-Responsive, and Privileged. Other designations may be used, and legal teams may use tags or designations that have different names; it really does not matter what they are called. What is important is that they are universally understood and applied consistently. The point is to give clear instruction to reviewers on how documents are to be coded.

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Apart from responsiveness coding, a document review may require confidentiality designations or issue coding. Be sure to spell out the specific designations that need to be applied to the documents.

There’s a basic logic to document review that should be followed when coding documents. If a document is determined to be Responsive, it must then be determined if the document contains any privileged or other information that should not be produced. If it does, has privilege been waived? If so, the document should be produced. If not waived, can the privileged material be redacted? If it can be redacted, the designation should be changed to Redacted. If it cannot be redacted, then the Responsive designation should be changed to Privileged because the document will be withheld.

These coding practices are a common-sense approach to preserving attorney-client privilege and they reasonably ensure that privileged materials are not produced in discovery.

It is also a best practice to code families of documents consistently during document review. If, for example, an email (the “parent” document) is coded Responsive, then any attachments to the email (the “child” documents) should also be coded Responsive. The reasoning is simple: When the author of an email attaches a document to the email and sends the email and attachment, it is the intent of that author for the two documents to be viewed together as a single communication. This, combined with the general notion of producing documents in the manner in which they are maintained, support the practice of consistent coding within document families.

Privileged Documents

Most document reviews involve examination of privileged documents and work product materials. One good practice is to identify in advance attorneys and/or law firms involved in the matter so that reviewers are alerted to potential privilege issues. If color-coded highlighting is available, use that to highlight attorney names.

Just like responsiveness coding, it’s important to apply privilege designations carefully. Parties are frequently called out by opposing counsel and the courts for over-designating not just privileged documents, but also for confidentiality designations.

Conclusion

In the end, document review cannot be viewed as a rote activity. It is a crucial, fact-gathering, and case-building opportunity. It is also a collaborative effort. If time is spent thinking about the review, its purpose, and goals, and if the objectives are reduced to writing in a protocol, the review process will go smoother and you will ultimately save time during the review itself.

Mike Quartararo

Mike Quartararo is the managing director of eDPM Advisory Services, a consulting firm providing e-discovery, project management and legal technology advisory and training services to the legal industry. He is also the author of the 2016 book Project Management in Electronic Discovery. Mike has many years of experience delivering e-discovery, project management, and legal technology solutions to law firms and Fortune 500 corporations across the globe and is widely considered an expert on project management, e-discovery and legal matter management. You can reach him via email at mquartararo@edpmadvisory.com. Follow him on Twitter @edpmadvisory.

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