The crucial role of reviewers in electronic document reviews (EDR)

Whenever the topic of eDiscovery comes up, the first thing most legal teams think about is the document review phase. It’s one of the most costly parts of the entire eDiscovery process and also one of the most important. Let’s take a look at what drives costs up and why electronic document review is so critical to the success of a civil or criminal case.

Cases are won and lost at the electronic document review phase

There are a few cases that demonstrate the important role of eDiscovery, but the first – and possibly still one of the most famous – was in the late 1990s between the United States v. Microsoft. The antitrust contended that Microsoft was conspiring against Sun Microsystems. The key piece of evidence proving the prosecution’s case was an internal email that surfaced during the electronic document review phase. In it, Bill Gates asked, “Do we have a clear plan on what we want Apple to do to undermine Sun?”

If electronic document review can win a case, mistakes in the review process can lose cases as well, as was the case in the copywrite lawsuit between Oracle v. Google. During discovery, Google listed the final version of an email that could be critical to Oracle’s case as privileged, however, the electronic document review process failed to identify and tag multiple autosaves of the email as it was drafted. These were produced to Oracle and Oracle later won the motion to have them included in the case.

Electronic document review errors don’t only include missing key documents, however. In the case of Samsung v. Apple, a sensitive Apple contract was improperly redacted by Samsung’s legal team and incorrectly uploaded to Samsung’s intranet, where it went viral. The document was under a protective order limiting its use to the litigation alone, so when Apple found out, sanctions soon followed.

A well-executed electronic document review process can win cases – but the opposite is true as well, and with the costs of EDR so high, there is limited room for error, but a lot of ways to streamline the process and make it far more cost effective.

Rising costs and document review errors

In the 1990s, the average pace of one person reviewing documents was about 60 to 70 documents per hour. 30 years later, this pace is the same, yet the amount of documents per case has risen exponentially. The Association of Certified E-Discovery Specialists (ACEDS) estimates the average caseload to be approximately 6.5 million pages. That’s over 100 000 review hours.

Thankfully, technology is creating the data explosion, but it’s also mitigating it, radically reducing the time required to conduct electronic document reviews and evidence management. The costs are still significant however, for a number of reasons:

  • Data exists in multiple media formats and file structures
  • Much of this data is duplicated
  • It is costly to recover and protect electronic data for discovery
  • Converting and indexing data into a common, searchable and usable format can be a labour intensive, specialised activity
  • There is a belief that bigger teams of document reviewers will speed up the process, even though this adds to the costs. Studies have found that people make errors and that reviewers often do not agree on which documents are relevant, with similar documents being tagged as both relevant and irrelevant
  • Review is not a once-off process. In fact, it’s iterative, which means that as documents are reviewed and the factual issues of the case come to light, indexes and tags are refined to determine what is (and is not) relevant to the case.

The twin roles of technology and the review team are therefore critical to successfully navigating the document review case, determining what the critical issues are early enough to build a strong case, and, importantly, keeping costs down. Remember, electronic document review makes up 70% of eDiscovery costs, so every efficiency gained has a significant impact on the bottom line.

The critical role of electronic document review

The good news is that eDiscovery has a standard accepted process outlined by the This gives reviewers a clear process to follow to ensure best practice when conducting an electronic document review.

Here is what a reviewer typically does during the electronic document review process:

  • Agree between both parties what is and what is not relevant to the case at hand
  • Create keywords and lists to filter and narrow down the selection of documents to be reviewed
  • Leverage the tagging and larking functionality of document review technology
  • Review each document for relevance, responsiveness, privilege, and confidentiality based on the case at hand
  • Update tags based on reviewed documents and the evolving case

Reviewers determine which evidence will be used for a case. Based on their discoveries, legal teams can formulate the best arguments for the case and the legal strategy they will follow. How quickly they receive documents also determines how much time they can spend on a case.

Whether you are a legal firm or an organisation with in-house and outside counsel, are you focusing enough on ensuring you have the best reviewers working on a case?

The role of technology

As we’ve seen, the ability to filter documents based on keywords is a crucial component in the EDR process. Through document review tools, reviewers can get to the heart of their legal matter and complete the entire document review project more quickly.

Documents are coded and loaded into a secure database. This dataset is then culled to narrow the number of documents under review. This may number in the millions, but will be brought down to a manageable subset of relevant documents to be reviewed.

How LexTrado can help

As one of the first independent firms in Africa to provide litigation support and eDiscovery services to local and international corporations and leading law firms, LexTrado offers solutions from leading global eDiscovery, security and DFIR firms.

eDiscovery is becoming more important in the context of civil litigation and represents a substantial portion of the litigation process, both internationally and in South Africa. Electronic document review platforms are essential in all legal and forensic matters to efficiently and cost effectively work through huge data volumes during large scale investigations.

With the correct tools and platforms, companies can:

  • Ensure they produce or review electronic data in a timely or appropriate manner
  • Avoid sanctions and fines
  • Avoid reputational damage and loss of revenue
  • Stand a better chance of winning their case