Set Accurate Timelines

Following the initial legal analysis, it is crucial to understand the logistical details of the project.  Calculating, and sometimes negotiating, the discovery timeline with the parties and the court will shape subsequent preparatory decisions.  Part of the calculation, and a good practice in preparing for the F.R.C.P. 26(f) meet and confer, is to evaluate the client’s “universe” of data.  In this step, attorneys will work with IT professionals to identify the boundaries of the data universe and make determinations regarding which documents will be deemed “reasonably accessible” under F.R.C.P. 26(b)(2)(B).  The balance of these documents will be evaluated for relevance and can be collected, searched, reviewed, and eventually produced accordingly.  Once there is awareness and agreement regarding the accessibility of documents, project timelines can be set in accordance with the discovery and court requirements.

Staff Appropriately

The size of the data population and the time requirements will determine how many reviewers will be required.  Staffing a project properly is crucial, and there are a few common mistakes that can easily be avoided.  First, you must have realistic expectations regarding the rate of review.  This factor is highly dependent upon case-specific parameters such as the complexity of the issues in the case as well as the type of documents being reviewed (two-page emails versus two-hundred-page spreadsheets).  Additionally, the nature of the documents will have an impact on the rate of review – materials from a custodian who possessed significant privileged communications will require more time and consideration.  Each of these aspects must be assessed and adjusted throughout the life of the review.  Next, the reviewing attorneys’ experience level and perspective will dictate both the rate and the accuracy of the review.  Staff attorneys who are familiar with the subject matter and who have successfully completed previous review projects will need less supervision and will generally work faster.  Inexperienced contract attorneys will require closer supervision and will likely work more slowly. 

Additionally, you must carefully gauge your expectations with regard to the rate of review, and weigh the importance of speed against the requirement of accuracy.  Neither should be sacrificed for the sake of the other; your timelines and assumptions should be geared, as much as possible, toward a balance between the two.

Finally, for larger projects that require dozens of contract attorneys from staffing agencies, it is a good idea to hire 10% more attorneys than you need to compensate for attrition and incompetence.  Prior to beginning the review, you should develop a training program to educate the group regarding the relevant legal issues, decision protocol, and the review technology being used.  This step will help reduce attrition and retain your core knowledge base for the duration of the project.

Create a Hierarchy of Decision Making

Consensus has famously been defined as “the absence of leadership.”  In a large-scale document review, there will often be a lack of consensus, but there must never be an absence of leadership.  A decision-making hierarchy must be explicitly defined and established at the inception of the project.   In large projects, there are usually a number of layers in the decision-making hierarchy.  At the top of the decision pyramid are the responsible attorneys in charge, typically from outside counsel and the client’s legal department.  The next layer is usually staff attorneys provided by the outside counsel law firm.  A majority of the decisions will be made by the staff attorneys, as they will have the most direct contact with the reviewing attorneys.  Within the review attorney team, there must be additional layers of decision-making – at a minimum, these should include the first review, second review, and quality control teams.  This hierarchy must be clearly delineated and publicized so that everyone involved is able to respond and communicate effectively.