Choosing the Right Solution for Document Review

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Choosing the Right Solution for Document Review

By Robert Grande– November 29, 2012

Review strategy consists of the high-level decisions and activities that guide the online document-review process. The strategy needs to include the key objectives of the review and all considerations around time, resources, costs, and risks. These key activities will drive all subsequent planning and management decisions. Every case has different objectives, sources, volumes, budgets, and time frames to consider.

Some of the key decisions around review workflow derive from the work product needed from the review team. Will the review team be performing a first pass review for responsiveness followed by a review for privilege or responsiveness? Is there a need for reviewers to redact documents? Will there be a second pass review of responsive or privileged documents? Based on these decisions, the review managers can configure the review tool to display appropriate tags or categories. They can organize the documents into appropriate folders and then communicate specific directions to the reviewers for how to conduct the review.

Every case merits a customized review strategy centered around people (reviewers), process (workflow), and technology (online review tool best suited for your needs) by combining all three in a structured yet flexible matter with sound review workflow, industry best practices, defensible methods, and technology and communication via input from your reviewers. It’s important to hold regular status meetings.

When choosing an online review platform e for your document review, there are important facts to consider. Should you go with a native format versus a TIFF/PDF format or should you perform the review through an online system or on an in-house platform? Other factors to consider include the functionality available within the platform, IT issues and cost considerations as well as vendor reputation, reliability, scalability, and security. It is always helpful to get the service provider to be involved in the process of examination of these areas and to provide you with tools and guidelines that will assist you in making an effective decision.

There are a host of emerging technologies that can help make the review process more efficient, ranging from email threading, concept search, clustering, and predictive coding. Once you have made your choice for the online review platform and anticipate a review project, make sure to block off at least half a day to provide a live orientation, including an overview of the case, software training, a group review session, and an individual session with each reviewer on the project. Nearly every software provider will make their staff available for your software training session, so be sure to arrange this with them in advance.

Review Methods

The linear method is a traditional review of documents within an electronic discovery review platform. This means that the legal team, review team, or investigators, will look at one document after another, ordered by date or keyword relevance. The files are lined up in an order and the review proceeds from beginning to end. When dealing with paper documents, this approach was necessary since reorganizing and refiling the paper was not feasible. This approach is sometimes used with electronic files —for example, reviewing all documents from one custodian in their original order.

A nonlinear review provides review sets that are populated based upon the content of the files. This allows the reviewers to specialize on topics or prioritize the content they review, leveraging the use of technology to increase the efficiency, cutting down time and thereby reducing costs. Regardless of the approach used, service providers can suggest the best practices to accomplish the review in the most efficient manner. Whether files are organized within each custodian or across an entire collection, dynamic methods for reviewing can use the content of the files to categorize them. For example, the files for a key custodian can be reviewed in chronological order to see the storyline of that witness’ involvement in case activities. More sophisticated options use conceptual searches to find similar documents and segregate them for review— whether in physical folders or by tagging the documents in the review program.

Native Review with Metadata
This refers to files that are opened for review in their original source format such as Word, Excel, and Outlook. From a practical aspect, the advantage to this format is that the reviewers see the file as was originally created, hidden data as in Excel formulas or links are displayed, the content of the files are fully available, and the cost for promoting to review can be less.

TIFF Review with Metadata 
In this method, the files are run through a program that “prints” them to an image file instead of printing paper. These images appear exactly how the document would print when originally created. The advantage of this format is a faster review without requiring any special software other than the review program.

TIFF Review with a Link to Native 
This method provides  TIFF files for review that result in speed of review as well as a link to the native file format which is required for further evaluation of the hidden or suppressed data. In addition you will need to select one of the two approaches for your review: linear or nonlinear.

There are no clear-cut rules surrounding the choice between native versus TIFF files. Rule 34b of the Federal Rules of Civil Procedure states, “A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.”

The native versus TIFF/PDF decision may be driven by the requirements of your production. If the requesting party has asked you to produce in a native format, it may not be a wise choice to convert everything to TIFF/PDF first, only to have to revert back to the native format for production purposes. On the other hand, you might have more control over your production if your images are in a uniform converted format.

TIFF File Production
Conversion to TIFF/PDF for review provides these benefits:

·  It gives reviewers a standard, locked-in formatting for all documents

·  Ease of bates numbering

·  Ease of redaction

·  Control over what metadata and hidden information is produced to the opposing side

·  Documents are in a production-ready state so production timelines may be reduced

·  TIFFs offer a universal way of viewing the data across groups

·  In most cases, reviewing TIFFfiles are much faster than reviewing native documents. Each click opens a tiff image or an entire native document.

·  Tiffs are still the standard for productions. The tiffs need only branding/redactions and they are ready to be delivered.

·  It is easier to segregate privileged information

Disadvantages of TIFF file productions:

·  The tiff format can be an issue for dynamic documents like spreadsheets with embedded formulas or Word documents that have an array of track changes and macros

·  Spoliation of documents can occur during TIFF processing

·  Metadata not retained in TIFFs

·  Cost of TIFF conversion and load file creation

Native File Production
Some practitioners pursue discovery in native file format, the original file format in which the electronic file was produced, such as the Word, Excel, or Outlook etc. This has become more popular per the new federal E-Discovery Amendment which enables the requesting party greater leeway in document requisition and associated files in native format. 

Native review provides these benefits:

·  Saves the time and expense of converting the entire dataset to TIFF/PDF prior to review, thereby saving the cost of imaging documents that are not going to be produced

·  It allows one to see and review data that may not appear in some types of images such as tracked changes, formulas, and hidden rows or columns

·  It ensures that potential spoliation from inadvertently opening a native file is eliminated

·  Faster processing time

·  Reviewing more dynamic documents like spreadsheets is preferable in native format

·  Spoliation of data is not an issue with native processing

Disadvantages of native file format production

·  Harder to authenticate and requires several viewer applications, so will require additional software to acquire and maintain

·  Click-through for each document is significantly slower than when in TIFF format

·  Difficulty in bates stamping at the page level

·  Inability to easily redact

Questions to Ask

·  Who has the data?

·  Where is the data located?

·  What time frame (s) are relevant to the production and review?

·  What information is critical?

·  What type of data will be reviewed— native files or a combination of paper-based productions and native files?

·  How big is the data population that will be hosted?

·  Will the review be linear or dynamic?

·  Will the case team need to be performing redactions, documents markups, or image highlighting?

·  What review efficiencies are built into the review platform?

·  What type of security does the data set require?

·  Who will administer, train, and support the user base?

·  How many people will need a user license to access the database and review?

·  What rights will be given to the user base?

·  How will you handle document productions?

·  How long will the database need to be online?

·  What type of internet connectivity and operating systems does your firm have available?

·  What features and functionality does the platform offer (such as redaction, notes, searchable text, native-file viewing, tagging and production)?

Keywords: litigation, technology, e-discovery, document review methods,online platforms, native file, TIFFs

Robert Grande is the director of business development at codeMantra, LLC, a provider of comprehensive litigation support, document management, software solutions, cP-DocRev discovery review platforms, founded in 2002 and headquartered in Plymouth Meeting, Pennsylvania.

Copyright © 2012, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

Making Sense of Data Tsunamis

Home › Technology for the Litigator › Articles

Making Sense of Data Tsunamis

By Robert Grande– November 21,, 2012

U.S. Magistrate Judge Paul Grewal has ordered Apple to provide Samsung access to sketchbooks and computer-aided-design (CAD) files relating to the development of its iPad and iPod products. Both companies are locked in an intellectual-property dispute over the design of tablet computers and smart phones. This is but another chapter in the protracted suit between the technology giants, with Apple being granted an injunction by the German courts in July that bars importation of Samsung’s tablets and phones. This back-and-forth is blazing trails in the realm of e-discovery, as well as in design patents. The access to the sketchbooks and CAD files must be done in a secure third-party location, adding another layer of complexity to the already complex e-discovery procedure between sophisticated parties. The first to market design dominance that Apple has been able to wield could impact the representation of emerging OEMs (Original Equipment Manufacturers).

E-discovery and document review are definitely not one-size-fits-all approaches and should be centered on people, process, and technology. All things created equal when choosing your review technology, you should start with the end result in mind, and this will help determine your process and individuals needed to meet desired goals. Your choice of technology should all be also discussed—both parties should agree on the chosen method.

Additional items to consider are the amount of data and location relevant to the case and time frame to meet desired results. All items help determine your choice in technology.

In response to Samsung's RFP no. 1, Apple shall produce all “sketchbooks,” or relevant sections thereof, relating to the four patents at issue in Apple’s preliminary injunction motion. Apple does not seriously dispute that the sketchbooks address designs at issue in this case and its burden arguments are not persuasive. While Apple has every right to review and withhold from production those sketches not at issue in the preliminary injunction motion, it offers nothing beyond attorney argument that the volume of materials to be reviewed is particularly onerous. The production shall be completed no later than September 30, 2011.

Samsung is tasked with the challenge of reviewing an onerous amount of documents in a limited amount of time. However, there are many document-review software options to choose from that can handle large amounts of data, as well as document review providers to provide licensed attorneys for relevance review. The main question which comes into play here is which process to use in culling the data for review.

Defining Document Review and Defensibility
Let’s first define what is document review and defensibility. Document review is a task performed by attorneys in anticipation of legal proceedings or during the discovery phase of litigation. Document review requires attorneys to assess the relevance and/or responsiveness of documents, using knowledge about the facts of the case and the issues of law. (Later stages of document review are sometimes called privilege review or second-level review.) Also to consider whether a document is privileged (on the basis of attorney-client communication and/or work product) and may be either withheld from production or redacted for content based on requirement and relevance.

Legal defensibility is defined as follows: An organization must proactively build a case that can withstand legal scrutiny, which demonstrates that it has done everything reasonable to protect itself and its assets in order to preserve and build long-term value. It should operate under the assumptions that it will experience a security incident, and that as a result of such an incident, it will be subject to legal proceedings (civil or criminal) that challenge whether or not it did what was necessary and reasonable in protecting itself.

Defensible and Cost-Effective Techniques
Data Culling

·  File Type: identifying system files and unique file types can allow you to remove files that may not be relevant. This should be applied prior to processing.

·  Date Range: date ranges of documents

·  Global Deduplication: remove across all custodians

·  Email domain name: identifying all email ids can remove nonrelevant names prior to processing

·  Search-terms list creations: using search technologies from Boolean (a wildcard concept), validation, and random sample of search terms can reduce population prior to production

Document Review

·  File Type

·  Custodian Communication: identify custodians that frequently communicate with key parties and prioritizes for review

·  Clustering and/or Predictive coding

·  Clustering: organizes documents into subsets of recurring themes; these subsets can be evaluated and culled

·  Predictive Coding: rank documents by similarity

·  Review Batch Organization: logically organize document sets that contain highly similar documents

·  Prioritized Relevance: utilizing document test to identify potentially relevant documents and stage for first pass review

Predictive coding 

This is a method of review whereby a computer program can categorize entire collections of documents as responsive or nonresponsive without further human intervention. Typically, the program ranks documents from most to least likely to be responsive based on the parameters articulated at the outset. These rankings can then be used to determine which documents warrant further attention by human reviewers to QC the decisions made by the computer. Just as no spam filter perfectly categorizes all emails as junk or legitimate, predictive coding is not yet able to perfectly identify all relevant documents.

Concept searching 

An automated information retrieval method that searches data for the ideas expressed rather than the proximity and appearance of search terms. Using semantic and statistical algorithms, related data can be grouped. With concept searching and the right inputs, your search for “fruit” would also yield data about strawberries, guava, jams, and pies.

Clustering 

Any number of software applications that organize your documents by grouping them into clusters based on the similarity of the text they contain. Then, by looking at sample documents, you can often make accurate judgment calls on behalf of the entire group.

Deduplication and Near Deduplication 

Functionally equivalent data that also appears elsewhere can be culled from your dataset prior to review so that you do not waste time reviewing multiple copies of the same data.

Keywords: litigation, technology, e-discovery, document review, design patents, Apple, Samsung

Robert Grande is the director of business development at codeMantra, LLC, a provider of comprehensive litigation support, document management, software solutions, cP-DocRev discovery review platforms, founded in 2002 and headquartered in Plymouth Meeting, Pennsylvania.

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