Document review, as it relates litigation and legal proceedings, is the process where each party to the proceeding reviews, sorts, and analyzes all documents, data, and electronic information in their possession to determine which materials may be relevant to the proceeding and what may be withheld from production. This process is the cornerstone of most discovery and ediscovery actions.
If, during their analysis, a party determines that the information is, in fact, protected from production they can submit a log (brief explanation of the document and the reason for withholding) to the court and be granted reprieve from production to the opposing party.
Key Players in Document Review
Typically, the document review process is conducted and overseen by an attorney. Attorneys have been the preferred reviewers due to their ability to constructively analyze data against the facts of the case and make determinations on how the documents should be classified. To ensure a complete review and subsequent redaction as necessary, an attorney tasked with document review must also be able to work with electronic databases, understand hidden data, and be very organized.
Moreover, the process itself is multifaceted. There are often several rounds of review, redaction, coding, marking, logging, and archiving into a searchable format.
Given the extensive nature of the process and in an effort to cut costs, firms or businesses will often outsource document review responsibilities to contract attorneys or incorporate a team of paralegals supervised by an attorney. However, even with these cost cutting measures, the best way to save money in your review process, especially where large amounts of documents require review, is to implement an automated document review process.
What Types of Documents May Be Protected from Disclosure?
Anytime a document is withheld you will be required to provide a sufficient document description that adequately conveys why you believe the document is protected.
There are several reasons why a party may be permitted to withhold documents during legal proceedings, and each reason requires thorough analysis to ensure that you can justify your party’s decision to withhold in a court of law. We review the most common reasons below.
Oftentimes, the opposing party will cast a broad net for information during the discovery process. Their goal is to gather any and all information they can to determine: 1. If there is anything they don’t already know and 2. If any documentation can bolster or help with their case strategy.
However, these fishing expeditions can result in requests that have no bearing on the claims in the case. Such information is irrelevant. As noted in FRCP 26(b), if documents requested during discovery are irrelevant to the facts of the claim, lawsuit, or investigation, there is no reason to go beyond the ordinary scope of discovery to provide them and the producing party is within their right to object to production. Thus, for the purpose of avoiding excessive costs in production and inadvertent disclosure of information, scanning for relevance in your document review process is crucial.
A thorough analysis for documents that are responsive to the request is important to not only ensure compliance with civil procedure rules, but also for your own counsel to understand and defend your position in the case.
Failing to review and produce, as necessary, responsive documents can have consequences. In Nachurs Alpine Sols., Corp. v. Banks, the defendant produced a log of roughly 24,000 documents they decided to withhold as non-responsive. Based on the log, the plaintiff asked the court to compel the defendant to re-review all of the withheld documents, this time applying four categories that the plaintiff considered relevant. The defendant argued that the request for re-review was too burdensome and also asserted that the information sought could be obtained by other means, like depositions and written discovery.
The court ordered the defendant to produce all 24,000 documents for “attorney’s eyes only” review, but said that Plaintiff’s counsel would have to review the documents at its own expense. Concluding that if review resulted in the discovery of any documents that were wrongly withheld, the plaintiff could ask the court for sanctions.
A complete review of documents so as to accurately produce those that are responsive and rightfully withhold those that are not is a vital distinction.
In litigation or court proceedings, there are often documents related to consultations with attorneys or meetings in preparation for trial or hearings. These documents will mostly like be protected by attorney-client privilege or the attorney work product doctrine and can be withheld from production.
If a document is being withheld under the attorney-client privilege, your document review should focus on language indicating that legal advice was requested, provided, or discussed. It should also concentrate on who is doing the communicating and whether they are attorneys. If a document is protected by the work-product doctrine, your review should look for documents prepared in anticipation of litigation or as part of an internal investigation into the claims of the case.
Confidential & Proprietary
If a document is confidential or contains proprietary information, it may be protected from production or require significant redaction. For example, if a document discusses your company’s trade secret, such as the recipe for a signature menu item or a unique software algorithm, you are not required to produce it. The document reviewer should analyze the document to determine if it contains confidential or proprietary information and consider whether redaction will be sufficient to protect such information. If redaction will not adequately shield disclosure, withholding the document altogether is justified.
The removal of duplicates early in the eDiscovery process can pay off by lowering review and production time and costs. It also reduces the risk of inconsistent responsiveness and/or inadvertent disclosure through identical documents.
The Illinois Supreme Court held that duplication of discovery to obtain the same information that is disproportionate in terms of burden or expense should be avoided. Admitting that while there are circumstances in which it is justifiable to require answers to the same or related questions by different types of discovery procedures, time-wasting repetition should be discouraged.
A complete review of each document and organization of the contents of each document is of the utmost importance. In the event that additional discovery is requested, having a thorough summary of documents, including those already produced, can help avoid the additional time and cost of repetition and also you explain to the judge with confidence why the additional documents are not being produced.
As mentioned above, during our discussion of relevance, a party will often cast a wide net and seek any and all information in the hopes that something will help their case. While this is common and par for the course in most litigation, it has its limits. Sometimes a party will make a discovery request that has a very low likelihood of leading to relevant information. This is compounded when the request would also require significant time and money to complete. For example, if the opposing party asked for all customer records from 2000-2020, but their client only received services from your business in 2008, this would be an unduly burdensome request. It would require a lot of time and money to produce and it is highly unlikely that the documents would contain relevant information in any year other than 2008.
In cases of where undue burden is being claimed, the document reviewer should make note of “the nature of the burden in terms of time, money, and procedure required,” [Moss v. Blue Cross and Blue Shield of Kansas, Inc] as well as “the number of sources the producing party would have to contact to ascertain the information, [and] the number of documents that would be involved in the request.”[In re Spoonemore]
Simplifying Your Document Review Process
While complicated, document review has its benefits. A complete review of records and documents relevant to the case also helps your counsel understand the facts of the claim, identify important parties, and gauge potential exposure.
Admittedly though, the overall process is time-consuming and costly. Ediscovery can make up 80% of the entire case costs.
Thankfully, document review automation can simplify the process of analyzing for relevance, responsiveness, privilege, duplication, and even redaction. Through automation, the sheer number of documents necessitating human review can be reduced to a fraction of what is normally processed in a traditional, manual review process saving you time and money. Automation can also help you implement coding procedures to make identifying which privileges or withholding justifications may apply, avoiding mistaken disclosures due to human error and inconsistencies.
Setting your business up with automation early on allows you to go into future discovery or litigation scenarios with an organized log and coded repository of all your documents so you can not only feel confident in your document production, but also take control of it while using less time and money.
To learn more, please reach out to firstname.lastname@example.org.