Underneath the cloud, at the base of any electronic discovery project, are contract attorneys.  Hopefully, they have been trained and armed with solid, objective criteria to make decisions regarding what is privileged.   If they have not, J-M Manufacturing Company, Inc v. McDermott Will & Emery  makes it clear that law firms and their vendors will be sued for malpractice if they botch handling of the e-discovery review.

I have managed multiple document review projects for AMLaw 100 law firms and fortune 500 corporations.  In most of those cases, electronic discovery matters are handled exclusively by young inexperienced attorneys or staff.  The cases toddle along with little oversight from the law firm’s senior counsel or corporate counsel.  Inevitably, the lack of experience and guidance from these stakeholders, costs the client hundreds of thousands in unnecessary review costs and subjects client’s like JM to exposure.  Those costs can be avoided if thought is put into the “How” of the document review.

The following is meant to help practitioners develop “review assets” to avoid the mistakes of McDermott:

(1) Always perform an early case assessment (ECA) on the documents collected.  This should be done prior to processing data.  Taking this initial step will inform the collection process, refine your keyword searches and assist with drafting the basic guideline for identifying potentially privileged material.  Additionally, it can help the stakeholders determine who is best suited to review that information.  Given the chance of future liability for producing privileged information to the other side, it makes sense to perform a “sneak and peak”.

(2) Quality Check (QC) the work of the reviewers as soon as possible and often.  Spot checking is not sufficient and 100% QC is not always feasible.  Regardless of the percentage, a consistent QC workflow is very important. The QC is the first “gatekeeper” to avoiding producing privileged documents.  It can provide the review team and supervising attorneys with valuable information about the case documents and help to improve the review process.  Finally, it makes it clear to the contract attorneys that their work is important and being monitored for accuracy.

(3) Update the document review protocol.  Encourage the reviewers to bring any documents, terms or custodian names that they come across, which are not covered by the rules, to their supervisor’s attention.  The documents or information should be added to the review material and discussed with the team members.

(4) Create a decision log that recounts reviewer questions and the answers given to them.  Reviewer’s frequently have questions at the start of the project.  That is why it is important that attorney decision-makers are on-site and available full-time in the beginning.  As the project moves forward, the attorneys  can be remotely available to the team.  They key is that the questions receive timely responses and that the log is updated.

These are just a few of the steps that can be taken to avoid the foibles of McDermott and JM.