The E-Discovery Field Guide
Cost-Effective E-Discovery Strategies for Litigation on a Budget: Four Strategies for Offensive Document Review
Much of this Field Guide has focused on strategies for responding to discovery requests propounded on the client from the opposing side. But that only tells half the story: an equally important aspect of E-discovery is reviewing and analyzing the documents produced by the opposing side to you. Often these documents are critical to litigation success because they provide the inside scoop—or even the proverbial “smoking gun”—on what the other side was saying or doing at critical times. Much like defensive discovery review, offensive discovery may be performed with a variety of different methods, depending on the parameters of the case. Below are four common approaches:
1. Manually Review Every Document
If cost and time were never a consideration, the most obvious approach to offensive document review is to manually review every document produced by the other side. Of course, cost and time are always a consideration, and the large volume of electronically stored information in today’s litigation will often make a complete manual review impractical. Typically, other, more creative solutions are required.
2. Search Terms
Attorneys often use keyword searches to narrow larger document populations into smaller, more manageable review sets. In theory, search terms are a useful tool for identifying relevant documents, as long as those terms actually appear in all of the documents of interest. In practice, however, search terms often are an imprecise method that is both under-inclusive (missing relevant documents that do not hit on the search terms) and over-inclusive (pulling in documents that hit on the search terms but are of no relevance to the case). Search terms also cannot always correct for human error, such as typos in emails, or for abbreviations or other shorthand that result in terms missing in a relevant document. Thus, although search terms provide a solid starting place, other, “smarter” tools exist that can save money and time, while also increasing the likelihood of identifying all of the key documents in a case.
Many review platforms offer an analytical tool called “clustering.” Clustering refers to the process of automatically grouping documents with similar concepts or keywords. Thus, each “cluster” of documents can be separately reviewed according to its content. For example, in litigation about product “X”, clustering can identify groups of documents only discussing unrelated products “Y” and “Z”, and those clusters can be excluded from review as unlikely to contain relevant documents. Clustering can also make document reviews more efficient by allowing reviewers to code conceptually similar documents from the same cluster, rather than encountering new, unrelated issues with each click of the mouse. Using clustering can also serve as a “check” on search terms by identifying documents that may not have turned up through searching but that appear to be related to a relevant issue.
4. Predictive Analytics
Another step in a “smart” review is to train the review platform to go out and find other similar documents. Similar to predictive coding, a predictive analytical tool allows the reviewer to identify key documents (or, more precisely, key language from within key documents), and the program then identifies and categorizes conceptually similar documents. This technology allows reviewers to home in on certain key areas of the litigation by extrapolating case concepts from a small set of “training” documents applied to the entire document universe. It is faster and more accurate than search terms, and it allows the reviewer to leverage his or her knowledge of the case to the entire set of documents without actually needing to review all of them.
Depending on the scope of documents, each of these tools can be used singularly or in combination to maximize the effectiveness of a review. Coupled with the abilities inherent in electronic review—e.g., sorting by date, custodian, or document type—a skilled practitioner has a robust set of tools at his or her disposal to unearth the key electronic documents that may make (or break) the case.