By Joe Aakre, Product Manager, Fios, Inc.
The following are some hints and tips that I am borrowing from “Chapter 8: Data Review: Fast and Thorough Methods” of Mary Mack’s book, A Process of Illumination: The Practical Guide to Electronic Discovery. This chapter offers practical advice that can help you and your legal team prepare for and achieve optimal results (and lowered costs) in your e-discovery reviews.
During the discovery phase of large or complex cases, there can be significant time and resource burdens associated with document review. Reviewing printed versions of electronic materials can be a time-consuming process. It is also subject to risks of omission due to “reviewer’s fatigue,” resulting in potential misidentification and misclassification of relevant and privileged evidence.
To reduce fatigue and meet tight e-discovery response deadlines imposed by courts and government agencies, legal teams should use reliable electronic data review tools that are fast and efficient. The review platform must scale to meet the demands of a project of any size, support review teams dispersed among multiple locations and provide a means for tracking progress to ensure that all ESI is reviewed thoroughly and accurately.
This chapter covers some general tips and important considerations when establishing review strategies and assumes that ESI (electronically stored information) will be hosted by an experienced, third-party provider.
- Safeguard the Data – Once the data has been gathered and aggregated, it needs to be safeguarded so you can confidently and securely review it. Make sure the review system is redundant and protected. If your e-discovery partner is hosting the ESI, make sure the provider utilizes the latest in data center security technologies and the best practices in deploying, handling and protecting assets and your information.
- Ways to Reduce Search and Review Time – There is a misperception about e-discovery that you’ll have to read thousands of documents online. In reality, the sophisticated search capabilities available in today’s e-discovery data review tools can reduce the document count dramatically. For example, it’s common to collect 100 gigabytes, cull the system files, and de-duplicate the evidence set, resulting in the legal team only being required to physically review less than 10 gigabytes of potentially relevant evidence. For the most accurate and efficient data review process, utilizing a web-based (online) review tool will enable your legal team to search, organize, categorize, annotate, cull and produce information. The goal is to minimize the time and resources you need to allocate to the search and review process while protecting the integrity of the data. Online discovery enables remote, secure access to your data for concurrent review by members of your team, regardless of location.
- Understanding Email Chains – Email messages are complex items with “chains,” such as any number of attachments and nested attachments or emails attached to emails attached to emails. To expedite a review, you want a tool that displays or maps the complete chain and allows you to quickly and directly navigate to any item in the chain. Sophisticated tools should be able to clearly display the chain’s custodian and provide basic information about each item, such as its file type, ID number, the number of “descendent” items beneath each branch of the chain, and each item’s coding or category information.
- Concept Searching – Being able to find, review and produce electronic documents that are conceptually related to initial search queries allows legal teams to identify and review relevant documents more quickly and more accurately than traditional search tools. Unlike keyword searching, which requires skillful use of Boolean operators like “AND” and “OR,” concept searching has no required formatting or syntax. Reviewers can enter a natural language query or paste entire paragraphs from a relevant document and, within seconds, receive a list of all related documents ranked by relevancy.
- Review Efficiency – When establishing review strategies and the technology needed to support the process, it’s important to look at system efficiency in order to accurately predict the speed of your review. This becomes especially important when attempting to extrapolate the total cost of a document review for use in early “meet and confer” negotiations around undue burden and cost shifting. Here are a few points to keep in mind when establishing an efficient review process:
- Flexible platform. The most important way to minimize the cost of a discovery project is to use efficient tools that are flexible enough to fit your review team’s workflow. Compare the ways different applications support common tasks, such as searching, categorizing and browsing.
- Individual vs. family. Consider how well the application in question supports efficient review of complex email families or chains.
- Mouse clicks and shortcuts. If you really want to compare application efficiency rather than performance (single dimension), start counting mouse clicks and key presses. Less is more.
- Review for Privilege and Relevance – Create a list of all counsel and law firm names ahead of time, so that potentially privileged items can be separated from the evidence set at the beginning of the review cycle. This will help your team eliminate the “bad” review calls, provide greater protection during review, and deliver a more complete production set – faster and more efficiently.
- Proper Indexing Is Crucial – A common problem in data review, as well as during data processing, is a lack of completely indexed data. The quality of the indexing is very important, as it is the key to finding the data you need. A variety of indexing methods is available; your choice will depend on the nature of your data.
- The Right Search Terms – One pitfall in the review stage is the use of overly broad search terms, such as “office,” “company name,” or “contract.” This can result in a massive number of irrelevant hits. You need to ensure that your search parameters and mechanisms appropriately narrow the resulting data set. Using e-discovery data review tools efficiently will enable searches to be done on an impressive number of terms. Advanced tools can do simultaneous searches in excess of 2,500 characters.
- Data File Extensions: There’s More Than Meets the Eye – Not every document is what it appears to be. In particular, data file extensions can be problematic during review. As an example, the file extension for a Microsoft® Word document, which is traditionally .doc, can be changed to other file extensions, such as .exe, .psd or .xls. The benefit of using data review tools that utilize sophisticated search technology is that they will search through all content, thus eliminating the risk of missing critical evidence.
- Time Crunch – Despite the best intentions, litigation teams don’t always allow enough time during the planning process for data review, which can cause a problematic time crunch. If you are in a situation where you need to quickly assign additional document reviewers to your project, you’ll want to be sure your vendor doesn’t charge you on a per-seat license basis, causing your costs to go up. Potentially more detrimental than the extra seat fees could be the delays in purchasing the licenses, setting up the new accounts or installing new software.
- The Dark Side of Unprotected Desk-Side Data Review – When a company provides data or access to custodian desktops to its law firm, attorneys or in-house litigation support staff may be tempted to do a desk-side, native file review. This involves opening and identifying which files meet the relevance criteria and then copying the files over to another location. The risks of doing an unprotected review of data are significant.
To help you in selecting the right approach, technology and service for managing your e-discovery reviews, I invite you to email me at email@example.com or call me at 503-265-0755. I’d be happy to provide you a demo of our newest offering, Relativity® powered by Fios, which delivers the most advanced analytics and workflow capabilities along with Fios’ powerful data management center and project management support.