Document review is often the most labor-intensive and expensive stage of the litigation process, the e-discovery process, and the Electronic Discovery Reference Model (EDRM). During this phase, each page of data in a collection is reviewed and analyzed to determine what documents must be withheld from production to opposing counsel.
Who Carries out Document Review
Often, document reviewers are attorneys who understand the legal and factual issues in the litigation and can make the necessary judgment calls as to privilege and responsiveness. To minimize cost, teams of contract attorneys or paralegals are often employed.
The review process often consists of several stages. The legal team may conduct a first pass review to analyze documents for relevance and code or mark them for a relevant subject matter. Litigation support personnel then load the coded data into a searchable database that allows litigation teams to easily locate key documents at every phase of the litigation process.
Reasons Documents Might Be Withheld
After the information is processed, the legal team conducts a second, more detailed review to determine what documents should be withheld from production. Documents may be withheld for several reasons, including:
Is the information relevant to the issues in the case? If it is irrelevant to the facts and issues of the claim, lawsuit, or investigation, it need not be produced to opposing parties.
Is the information responsive to the discovery requests of the opposing parties or the investigatory requests of regulatory bodies? If so, to which request for production is the information responsive? Document reviewers might also tag “hot” documents—those which contain crucial information to the case and are particularly responsive—during the document review stage.
Is the information subject to attorney-client privilege, the attorney work product doctrine and/or any confidentiality rules and privacy laws? If so, it is also withheld from production.
If the document is confidential, it must be excluded from production. For example, if a document discusses a trade secret, such as the recipe for a candy manufacturer’s signature chocolate bar, the legal team is not obligated to turn it over to opposing parties. The document reviewer will analyze the document to determine if it contains confidential information. If it does, the reviewer will determine whether certain portions of that document should be redacted to protect the client’s confidential work product or whether the document should be excluded from production altogether.
As part of the document review process, the review team may identify documents which should be wholly or partially redacted or marked as confidential to protect the contents of those documents from disclosure. The team may also prepare privilege and/or redaction logs to track such information.
In addition to review for relevance, responsiveness, privilege, and confidentiality, the review team may also analyze the information to relate key documents to alleged facts or key legal issues in the case. Document reviewers may also attempt to relate key documents to key players who may testify about the documents or identify other subjective information.
Purpose of Document Review
Based on the review and analysis of the documents in the collection, the legal team can begin to gain a greater understanding of the factual issues in a case, formulate legal theories and identify key witnesses to be deposed or called at trial.
Through culling, keyword search, first past review and other techniques to narrow the volume of the dataset, the documents ultimately reviewed by the legal team usually represent only a small fraction of the original collection. To further reduce expense, a growing number of technologies that automate the review process are streaming to market.