When lawyers prepare for litigation, depositions, mediations, or even internal investigations, they conduct a document review to find all the documents related to the project. If the document review is large enough, they may enlist the help of others, like document review attorneys.
If other team members lend a hand with the document review, Lawyers will typically develop a document review protocol to ensure that all relevant documents are identified and outline what documents are important to the legal matter. The review protocol also includes coding instructions and review guidelines for the document review team.
By drafting and following a well-defined document review protocol, lawyers can be confident that they have thoroughly reviewed all relevant documents and are in the best position possible to tackle the legal project they are working on. A well-crafted review protocol also saves time and resources because it informs and prepares your document review team.
This guide will walk you through the critical components of a review protocol, including how to provide a solid case history and background, review guidelines, issue tags, confidentiality considerations, and document review best practices. With these tips, you can create a smooth document review process.
A legal document review protocol memorandum will serve as a directing document, stating the review’s objectives, providing case history, reference materials, and coding instructions. You should tailor the review protocol to meet the goals of the review. So, if the goal is to produce documents quickly, limiting the number of tags (coding labels) to apply to documents may help achieve this. The review protocol memo should also outline any privileged or confidential information.
The review team will use the review protocol memo to identify responsive documents, apply issue tags, and identify key phrases and other relevant identifiers. Detailed review protocols improve communication between the attorney in charge of the project and the document review team, providing a mechanism for incorporating feedback and making needed changes to the project plan.
A well-drafted review protocol memorandum should help anticipate probable questions and increase efficiency. It should be clear, concise, and easy for the reviewers to refer to throughout the project.
The protocol should include the factors that will be considered in making decisions about responsiveness and privilege. Thoughtful drafting of the document review protocol memorandum is essential to a successful review process.
Providing Case History and Background
Starting with the case history provides the review team context for their document reviews. A brief synopsis of the case and what the claims are, including key players, can be taken from the pleadings. This sets the stage for the review team to identify key documents and strategies for conducting a successful review.
Case histories can be long and complex, so they must be concise and focus on the most relevant information. In some cases, it may be helpful to include reference material such as key terms, timelines, and visualizations.
The review guidelines section details the actual scope of the project and clearly states the objectives while including coding instructions. For instance, is the goal of the review to identify documents relevant to the legal matter or, simply to locate and segregate privileged information? Coding instructions can combine the following: responsiveness, privileges, issue tagging, and confidentiality.
Additionally, the review protocol may include the review method the review team should use. For instance, is it a family review or “four corners”? review? In a family review, coding decisions are made in context by considering accompanying emails or attachments. The context of the documents determines how to code each document. In contrast, four corner reviews involve reviewing each document independently, without considering the overall context of the documents.
Identify Responsive Documents
If the objective is a responsiveness review, the protocol should identify the type of documents that will likely be relevant or responsive.
These documents will depend on the type of case but might include:
Compile Issue Tags
An objective of responsiveness document reviews is also to organize documents by relevant issues. This is accomplished with issue tags. While issue tags can help identify issues with a document, too many tags can complicate the review process and slow down the review speed (and increase document review costs). Use a limited number of concise and actionable tags to maximize review efficiency.
Protect Privileged Documents
In the document review memo, there should be a Privilege List or Attorney List with names that the review team can refer to while they review documents for privilege. The privilege lists the attorneys or other issues for the review team to search. The presence of attorneys alone does not, in and of itself, render a document privileged.
Flagging for Confidentiality and Redactions
Not all protocol memos need to address confidential documents, but if sensitive information is an issue in your case, the document review memo should have instructions about identifying and flagging confidential documents.
In this section of the protocol, you can explain any confidentiality designations, and what types of documents should be flagged. Confidentiality designations can range from personal identifying information (social security numbers, dates of birth, etc.), to financial information, and trade secrets depending on the case.
If redaction of sensitive information is required, the review memo should set out redaction instructions. Redactions are necessary when sensitive information needs to be removed from a document before it can be shared, and the protocol should explain what needs to be redacted. It is important to note that redactions can slow reviews down, so it is important to only redacted information that needs to be removed. In lieu of redaction, protective orders, confidentiality agreements, and clawback agreements may be sufficient.
Provide Example Documents
When prepping a document review protocol for the team, providing specific examples of documents coded for issues, responsiveness or confidentiality is helpful.
The review coding panel takes the instructions directly from the review protocol and provides the reviewer with a list of coding options as they click through each document. The coding panel allows reviewers to tag documents with multiple codes, ensuring that all documents are coded consistently according to the review protocol.
If the review protocol is complex so will be the coding panel. Simple coding panels are often more effective than complex ones because they increase review speed by limiting the number of tagging choices that need to be made.
A streamlined, well-defined coding panel will not only increase reviewer speed but also accuracy by reducing the opportunity for errors in coding decisions.
The lead attorney should take the time to review some of the documents before releasing them to a review team/vendor. To do this, take a sampling of documents so you can understand what the dataset contains. This will help you better educate the review team and answer questions as they arise.
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