EDD Manager: Just Produce It!

When defending a client we all know that, as lawyers, we must act in the best interest of the client.  Of course, in e-discovery, a lot of the times I see things that don’t necessarily benefit the client.  One huge issue I have, as you know if you’ve read this blog before, is the over reviewing of documents.  This is usually due to poor management strategies, with an inability to see the future and how these documents will come back for re-review at some point. 

To continue with poor management strategies, as a manager of an e-discovery project the best thing to do is to be up front with your coders.  Most contract attorneys are not impartial to the litigation at hand – unless they are made to feel that way.  I see a lot of times when a project has started, management does not convey enough about what the actual issues are in the case.  A lot of times a review is tailored so that coders are viewed as automatons to tag documents according to a set protocol – almost as an extension of the computer and software in front of them.  This is not the way to get the most out of your team and is more unproductive than a lot of firms and vendors can imagine.  Here are some helpful hints, that are easy to do, that steer a review into a productive and happy environment instead of into a tense and dreery experience.

1) Give a detailed briefing of the case.  Don’t jump into the coding rules after explaining the litigation for 5 minutes.  Give these attorneys some credit; because that’s what they are – licensed attorneys. 

2) Provide copies of the discovery request.  This should be a no-brainer, but I am shocked how many times I have seen or heard of a bypass of this crucial information.  Let the attorneys read exactly what the other side is looking for.  A lot of times this can shed light on the vagueness of the coding rules.  You’ll find a lot of coders will be able to avoid the “stupid questions”, as well as bring to light the important questions early on in the review.

3) Creat a forum to update the status of review.  Some things are just unknown and we have to accept that.  But there is no reason changes to the review protocol cannot be communicated to the reviewers.  Make sure nothing is merely orally communicated.  When you have meetings, have someone record the minutes and make them available via email or intranet.  Establish an internal network where coders can reference the updated rules and direction of the case.

4) Approach the review with the intent to produce.  This may be the most important caveat here.  A lot of times when policies are reviewed and meetings are held, the focus is on what is to be withheld.  Possibly unbeknownst to the PM, this conveys a concept that withholding documents is of upmost importance.  This couldn’t be further from the truth.  Withholding the correct documents is the most important thing.  Producing everything else is the next most important thing.  In representing your clients you owe them to flood the plaintiff with as many documents as possible.  They requested it, they should get it.  Don’t do their job for them.  A lot of times coders will error on the side of withholding a document because they are unsure of the rules, afraid to produce what seems to be a perfectly harmless document, or just don’t care anymore because they feel isolated from the entire process. 

To recap, inform your employees.  Make them feel a part of the process and not merely as an instrument who can’t think for itself.  Create a forum for them to educate each other, as well as management, and reference the newest information available.  And most of all, convey an ideology of production.  This will cut-down on lit negotiations that can be very tedious, as well as, re-reviews – which can all lead to tension and misery in the workplace.  Next thing you know, you’ve secluded those who can help you the most and possibly divided the office.

A good rule of thumb is a good mind will always trump the newest technology.  A good manager already knows this.

Privilege Review Gets More Complex

Reviews need to get cheaper.  If it’s not going to happen in the good ol’ U-S-of-A it’s going to happen elsewhere – like India.  Does it have the requirements needed?  How about good command of the English language?  Check.  What about a rigorous educational system that will ensure lawyers have great attention to detail?  Check.  What about the ambition, resources and know-how?  Check, Check, and Check.  As data security gets better in the U-S-of-Asia, the LPO industry will continue to command US and UK business.  So once that’s all done, we’ll see the end to onshore, large and mid-scale document reviews?  Not so fast.

Privilege reviews are not necessarily bound for Hindustan just yet.  A few years ago I wouldn’t have thought this way.  Anything that sniffed of privilege – whether a document contained an attorney, had the word “privilege”, or had some unknown scribbling – was marked for privilege review.  So basically this was a terrible filter for determining privileged documents during discovery, but, because of resources, technology, judicial leniency, etc., this was tolerated a little.  Not today.  A few years ago we were reviewing documents from a few years to decades ago.  Electronic discovery at this level it’s at today was not contemplated by the private sector.  Documents weren’t sent to attorneys unless there was a legal issue involved.  Moving forward, I feel pretty sure, you won’t see this kind of diligence. 

What we’re going to see is every document, and it’s mom, sent to an attorney, or contain the language “privileged & confidential” or “attorney-client communication”.  Right now most reviewers are told to mark that privilege and move on.  And yes, there should be a special privilege team reviewing those documents and determining the proper status of such documents.  Unfortunately, we’re going to see an overwhelming amount of these documents tagged for privilege.  Why?  So a company can protect virtually any sensitive document it wants to.

Because of this, there needs to be a clearer understanding of what makes a document privilege.  Is the communication enough?  Or must it be an issue directed at an attorney, where it is within the attorney’s legal and business duty to oversee such an issue?  Whatever it is, you can believe in-house counsel wants their co-workers to be extra careful.  No more whimsical forwarding of possibly privileged, confidential, or any sensitive material without having some indication this document is privileged – even though it might not be.

More privileged reviewers will be needed when this eventually occurs.  And what happens with more reviewers?  Less consistency – especially when the rules are not clearly defined (a problem that infests the document review world.)  But even with rules, there will always be exceptions.  There will always be documents and situations and contexts that won’t be contemplated – where a grey area exists. 

Indian law doesn’t even recognize the communication of a client with in-house counsel as privileged (http://www.sourcingmag.com/content/c061218a.asp).  The cultural understanding makes this the first hurdle.  The next hurdle would be to train these foreign attorneys in understanding how to analyze potentially privileged documents.  The method will become difficult and tedious with the growing intolerance of judges and persistence of plaintiff counsel. 

So while reviews are going to India, I can envision a day where every doc could be possibly privileged.  Ok, maybe not that far, but a lot closer than a trip to India.