ESI review protocols: No more shots in the dark

Partners Jon Mattingly and Hamish Cohen were published in the Indiana Lawyer regarding the pillars of good document review management.  Here is an excerpt of their work:

Much has changed from the good old days when associates reviewed documents in huge warehouses. Back then one could stand and survey his or her domain of Bankers Boxes, many of which were gently dusted with what was probably asbestos and had been invariably damaged in some long-forgotten flood or fire. The possibility that your client wrote something damaging (or helpful) in an offhand email was non-existent; the likelihood of someone finding useful documents in some moldy box about the same. We were all, in many ways, shooting in the dark.

Technology has changed things. Big clients no longer open their warehouses to opposing parties and tell them with passive-aggressive glee to enjoy a winter half-frozen with carbon-paper stained fingers looking for goodness-knows-what.

Today, a producing party gathers, processes, reviews and produces information that the receiving party can analyze and search immediately using sophisticated diagnostic software and complex Boolean search protocols. Document productions, if done incorrectly, are often overly and underly broad; unnecessarily expensive and inefficient; and potentially damaging. These days if you, knowingly or unknowingly, produce a needle in a stack of hay, it will be (or should be) found.

Attorneys today must closely monitor client “needles” while still producing responsive documents, removing non-responsive documents and identifying privileged documents. How? You need good document review procedures and protocols. What are good procedures and protocols? The answer to this question, as any experienced lawyer knows, is “it depends.” Fear not; principles exist to guide us.

Read the entire article here