The ability to handle large document cases by small firms and solo practitioners has been a reality for many years. As a solo or small-firm practitioner, you should not fear these cases. What has equaled the playing field has been technology. As you know, the production of electronic data, particularly email, has driven many commercial litigation cases into the need to use technology.
When working for a mid-sized firm, we had a license for Summation. These days, investing in Summation or a Concordance subscription may be out of your budget, or you simply don’t have enough of these cases to justify the cost. And while these programs had an intense learning curve a decade ago, the newer versions are far more user-friendly. If you do have a lot of these types of cases, an investment in one of these programs or subscriptions may be a better value. For those where it is not, you don’t have to send the case to someone else, as there are other solutions.
For those who just don’t know where to start, I will lay out strategies that I have used over the years where one person can feasibly sort through over 100,000 documents to identify potentially responsive documents.
- The first step normally involves reviewing the document production request or subpoena that was sent to your client. Try to identify what is the range of items that could be encapsulated by the requests. Sometimes the issue is narrow and clients will know exactly what documents are responsive, and other times they don’t have the manpower to even begin to search through hard drives or emails. Depending on the sophistication of the client, oftentimes the first discussion is about what types of electronic storage they use or whether they have large repositories of paper documents. Also important is to discuss (oftentimes with their IT personnel) whether there are auto-archiving features or other electronic archives that may need to be searched. You can review the state guidelines and rules here.
- Contacting a third-party vendor: Where you don’t have the software or don’t want to invest in getting the software (which often involves monthly fees or yearly maintenance plans), there are several e-discovery vendors, including some local in Boston. One of the key considerations for most clients is going to be cost. Understand that there are several options that vendors will offer — for example, whether you want the data hosted on the site (for review at a later time) long term. Some vendors use different software. It is important to ask what the options are and have an understanding about how many gigabytes or terabytes of data you are going to require to be sorted through.
- Discussing costs with the client: Make sure you get detailed breakdowns on the costs and options so your client can determine the best course of action. While this process can seem very expensive, it is still a fraction of the cost of doing it the older way, potentially cheaper than having a larger firm handle it, and it complies with the discovery rules. If the costs are onerous, you can always look at narrowing the possible areas to be searched, seek relief from production of certain information if such information requires a significantly broader search of electronic data to the point where the costs are not reasonable in relation to the material being requested, or request that costs be shared or borne by the opposing party (which can be done as part of a request for a protective order).
- Document transfer: Depending on the amount of data, you can get the data to the vendor in a couple of different ways. One way is a secure upload. Another approach, and one I often use, is to put the documents onto a secure thumb drive or secure hard drive. It is important to make sure that the data is sent with a high degree of data security. Since you have not reviewed it, you need to treat it as though it is highly confidential and contains personal identification data. Minimally, the drive or disk should have password protection with the password being sent to the vendor via a different transmission method. All vendors are trained in digital security, so it is advisable to discuss with them all protocols to follow. If they are not trained in digital security, then that is a red flag that this is not a vendor you should be entrusting these digital documents to.
- Culling the data: The key reason why small firms can compete with large firms on document review comes down to this step. No matter which steps you follow, modify or ignore, this is the one that determines the success of your project. When figuring out how to cull the data, consider some of the following suggestions. First, and perhaps most obvious, is to avoid using common words, including words common in your client’s industry, even if they are not common generally. Second, consider what permutations of the same word may need to be used to capture the information. Third, using the above two principles, create a list of keywords that can be used to significantly narrow the possible field of relevant documents.
There are two theories to this approach. One is to be more inclusive and include words that will likely have a high percentage of irrelevant documents, and the other is to be very selective and use words that are likely to only produce relevant documents, but may also miss relevant documents. If choosing the second approach, it is recommended to have a discussion with opposing counsel to get “buy in” on the keywords being searched so there is a mutual understanding that some documents may escape detection. Give consideration to any requests by opposing counsel for adding some terms if they are relevant and not likely to create an overly burdensome production.
- The next thing I normally do particularly applies to document production sets that include email. Because of the tendency of spam mail (or agency newsletters or other things you know will not be relevant to your document production) to be caught up in archives, deleted folders, etc., I like to use vendors that allow me to sort by metadata and, in this case, sender. This is a technique that you can use where you will find certain addresses that you can block mark as “not responsive.” The goal is to limit the amount of documents that need “eyes” on them. Also, any search for terms that might lead to excludable documents should be used. For example, I once used terms like “vacation” or “patriots” in a commercial litigation case (having nothing to do with vacations) and was able to exclude almost .5% of the total documents (which saved about five hours of billable time with 20 minutes of work). They may not be as easy to “bulk mark,” but the “eyes on” time can be relatively short.
- Most programs used by vendors allow you to create check boxes as you review documents. Some let you highlight key information, make a notation, or identify if it is privileged or needs redaction. It is important to create these boxes to assist you later in sorting the production or creating a privilege log in an orderly fashion. The goal is to review the documents quickly, but also flag those documents that will require more attention later. Particularly important is where you are having an attorney who may not be as familiar with the underlying issues in the case doing the initial review, or a paralegal who may or may not see the legal significance in a particular document. Where they are uncertain, these check boxes will make it easier for them to flag documents for your personal review, saving you the time of going through the entire set looking for the documents where they had questions.
- Always talk to the vendor about methods to identify duplicate documents or drafts. Oftentimes, once one version is deemed by you as “to be produced,” it is easier to create a category of “possible duplicates” and flag them all for review later. If it is an email and the conversations that follow are not relevant to the production requests, then it is easier to later mark those as “not being produced” or “irrelevant” once the initial document is flagged. However, it is better to not uncheck them as being “possible duplicates” in case you need to revisit the issue later on.
- If, after culling, you still have a large amount of documents that require “eyes on,” then consider removing some keywords to see if it reduces the size of the review, particularly after you have gone through several of the documents and not found relevant documents using that keyword.
- If you just don’t have the days it may take for eyes on review, consider hiring someone from a temporary staffing agency for a quick turnaround assignment. Whether you feel a lawyer or paralegal is needed for the task, there are ample “force multipliers” out there for hire on a temporary basis.
David J. Volkin is the owner of the Law Offices of David J. Volkin, where he represents businesses and individuals in all aspects of commercial, employment and environmental litigation. Volkin also serves as a member of the Massachusetts Bar Association’s Solo/Small Firm Law Practice Management Section Council.