5 Ways to improve your electronic document review process

When LexTrado launched in 2010, eDiscovery and digital case review was unknown in South Africa. This has steadily been changing, particularly in the Electronic Document Review (EDR) space. Document review is one of the most costly steps in the entire discovery process. It’s also arguably one of the most important. Streamlining it through technology therefore has enormous benefits, first from a cost perspective, but also from a human error perspective.

Unfortunately, many businesses and legal firms still dive headlong into a review with a plan that loosely looks like this: “First, we’ll review it. Then we’ll review it again for quality purposes, and then we will produce it.”

So, lets first address why EDR happens in the first place. In a nutshell, legal teams are reviewing for responsiveness and privilege. What should be included in a legal case, what is irrelevant and what is privileged? The information that surfaces during this process will also help the legal team choose whether to litigate or settle, and – if litigation is the decision – to devise the best legal strategy to win the case. From a forensic investigation point of view, the primary objective is very similar but might not entail privileged data. Instead, digital forensics is more focussed on identifying evidence to assist with the investigation and to assist in identifying additional avenues to investigate or pursue.

According to a recent study by the Association of Certified E-Discovery Specialists (ACEDS), the average case contains 6.5 M Pages, 10 to 15 Custodians, and 130 GB of data. That’s the equivalence of 100 truckloads of data – times 100. According to a study published by the Rand Corporation, reviewing electronic documents makes up the most significant percentage of eDiscovery production costs at 73% of all expenses. In other words, it’s a long and costly process. But it does not have to be (or at least, it can be achieved faster, with more accuracy and at a far lower cost than traditional EDR).

Here are five ways to improve your Electronic Document Review process:

  1. Take a step back before you begin the EDR process

Leading up to the review, legal and investigation teams are typically learning as much as they can about the case at hand. This involves briefings, interviews and negotiations.

Diving straight into the review without planning results in a poor review process, however. Once you are ready, take a step back and first ask these questions:

  • What do we want to achieve with this review?
  • What information should we consider responsive and relevant?
  • What types of documents are important and why?
  • Will different custodians consider different kinds of documents to be important?
  • What are our priorities for review and production?
  • What is our deadline?
  • What is our budget?
  • How are we ensuring quality control?

With this information in hand, you are ready to start a successful EDR process.

  1. Combine legal, forensic, case and technology expertise

EDR is significant in that there is a technical element, a review element, a forensic and a legal element that, when combined, result in a successful process. Your technology partner should therefore be treated as a full member of the review team. Discuss your case and your concerns, particularly regarding time and cost. Allow your technology partner to help plan, quantify, budget, document, and report on the entire process. They will also assist you in filtering out the kinds of documents you don’t need to review by type, date, custodian, email domain, or even keywords or phrases. These filters can help you prioritise and focus your review, as well as ensure a higher degree of certainty in terms of whether a document is responsive or potentially privileged.

  1. Leverage technology

Technology solutions make any difficult, time-consuming, or expensive tasks faster, better and more cost effective. This is true of all technology solutions, but is particularly relevant for EDR.  There are at least three technology-assisted review (TAR) tools that can assist you, but also many more solutions than this list below – these are just three core tools to consider:

Predictive coding leverages the knowledge and talent of your team’s most experienced reviewers. Through predictive coding, documents can be ranked from most likely to least likely responsive without your top team members needing to review each document themselves. TAR uses statistical sampling, concept-based searching, and algorithms to identify similar documents, which means dramatically decreases the review of non-responsive documents, contributing to speed, quality, consistency, and cost management.

How many times are emails read by, replied to or forwarded by different people? How long does it typically take to find and group all these same email threads together? Email message threading groups together the messages that are all part of the same conversation in emails, presenting the reviewer with the longest and most inclusive email for review first, and avoiding the redundant and unnecessary review of all component emails of the same thread.

Near-duplicate detection groups together any messages with similar content, also streamlining the review of documents. Unlike email threading, your team will decide – based on their expertise and knowledge of the case – what degree of similarity should be used.

These technologies are all well-established and defensible, and although they are not yet expected by South African courts, they are approved by them. Applied properly, reviewers can batch and evaluate similar content at once, resulting in a faster, much higher quality review process.

  1. Document and report

Every review plan should be documented and have a budget. This plan should include how technology will be used (your technology partner can assist you in this regard), how documents will be grouped and batched, and in what order your team should review them. Prioritise content that will make the biggest difference to your case strategy, but understand that new data surfacing during the review may require your strategy to change. The beauty of EDR backed by technology solutions means you can quickly adjust or add filters and tags to broaden or tighten your scope as required during the review process itself. Your plan should also include how you will evaluate and monitor for quality and consistency and how your technology partner will support you.

  1. Understand the costs

Ten years ago, EDR technology solutions were prohibitively expensive for South African firms. This is no longer the case. Through partnerships with international platforms and our own investment into platforms that enable our clients to access best-of-breed solutions at South African Rand prices, we have democratised the use of EDR technology for South African firms.

At LexTrado, we also work with our clients through real-time dashboards and reports to ensure that we are all working within budget and that review costs do not spiral out of control.