By Mark G. Griffin, Esq.
More than ever, civil litigation attorneys need to be able to provide remote oversight of document review teams. The ever-expanding size of data in civil litigation now requires litigators of firms of all sizes, from solo practitioners to “big law” firms, to utilize outside document review teams. Using remote document review teams provides many benefits, such as the ability to scale the document review team, hosting the review in affordable staffing markets, and freeing up valuable attorney time to focus on more substantive issues within the matter. However, utilizing remote document review teams does create management issues for the overseeing attorneys, such as how to remotely ensure quality and consistency of the document review. Drafting a thorough document review protocol memorandum provides the best approach to ensuring a quality and consistent document review, by proactively informing document reviewers of your expectations through delivering relevant information and directions. A document review protocol memorandum will serve as a directing document, stating objectives, providing case history, reference materials, and explaining coding instructions to guide the document review team. While, evitably, document reviewers will have still have questions after an introduction call from the supervising attorney explaining the engagement, a thoughtfully drafted review protocol memorandum will diminish questions and increase efficiency by proactively addressing probable questions through detailed instructions. Given that a document review protocol memorandum will be consistently referred to by the reviewers throughout the duration of the engagement, it is essential to take time and thought into drafting the document.
A properly drafted document review protocol memorandum will be a collaborative document between all overseeing parties. Attorneys, vendors hosting the data and staffing firms providing the document reviewers, should work in collaboration in drafting the document review protocol memorandum to ensure all parties understand the document reviewers’ assignment. While attorneys have specific case knowledge about the matter that will ultimately shape how the review proceeds, document review hosting vendors have experience and expertise in supervising document reviewers and configuring databases, and staffing firms will be able to provide the best assessment of the reviewers’ skill and familiarity with different document review platforms. Utilizing your vendors’ knowledge and experience while drafting the document review protocol memorandum will increase the chances for a clear and understandable memorandum, which in turn will improve the quality and consistency of the document reviewers’ coding.
While each the matter has specific information and parameters that would require tailored sections, typically, a document review protocol memorandum should cover an introduction statement, case background, objective statement, case context reference documents, document coding instructions, and document coding reference document examples.
A document review protocol memorandum should begin with a brief introduction to the case and address the scope of the upcoming review. The introduction statement will serve as a quick reference point that document reviewers can refer to, ensuring they are staying within the scope of the assignment. Therefore, the introduction statement should familiarize document reviewers with the matter by inclusion of a brief explanation regarding who are the parties, whom your firm represents, what is at issue, and what the document review will entail. The introduction statement should be concise since the case background section will provide specific case details.
A case background section provides document reviewers with details about the matter’s inception to where the matter currently stands. Here, document reviewers will be able to learn the case’s procedural history, internal developments, case theories, and outside interactions with opposing counsel that may provide additional context to their assignment. Understanding how a task contributes to case objectives should yield a better document reviewer work-product by hopefully keeping document reviewers more engaged by explaining how their job contributes to the overall client engagement and goals.
Following a case background section, drafters should provide a concise, objective statement that communicates the expectations of the review. The best objective statements provide the document reviewer with a clear purpose for their engagement and, ideally, will be referred to daily.
After reviewing the introduction statement, case background section, an objective statement, document reviewers will likely have questions. Attorneys should provide additional case context reference documents for document reviewers to gain a deeper understanding of the case. Questions about the claims at issue, timelines, and confidentiality are typically explained in depth in the matter’s complaints, orders, protective orders, and requests for productions. Provide these case context reference documents as reference documents where document reviewers may find answers to their questions. Additionally, attorneys should prepare a list of individuals and custodians that are relevant to the matter and review. While pleadings and requests for productions will provide names of relevant custodians, providing a list of proper names of individuals, companies, and their positions helps provide document reviewers with the context of the universe of documents they will be reviewing.
Given the title of the document and the information provided to document reviewers, it is now an appropriate time for the document review protocol memorandum to explain how document reviewers should actually code documents. While each case is different, coding instructions should follow a general format to promote an efficient review. Coding instructions should be drafted to cover the broadest fields to be coded first, working your way to the most narrow fields to be coded last. The first document coding instruction should be the most expansive coding field; that is, a required field or fields that must be coded by each reviewer. For example, in a civil litigation document review in response to a request for production, responsiveness would likely be the first field to code. Each document in the universe must be coded for responsiveness, responsive or non-responsive. Therefore, it should be the first issue covered in the document review protocol memorandum and set up by the hosting vendor as the first issue to be coded in the coding panel. Additional examples of broad fields to code in a civil litigation review for responsiveness could be further review required, technical issue, or foreign language. If these fields are relevant to the matter, these coding field protocols should be covered earlier in the document coding instruction section.
Following the most broadly coded fields, the document review protocol memorandum should proceed to provide instructions on how to code the more narrow coding fields. More narrow coding fields will be fields that do not apply to every document that must be reviewed but would be required to be coded if applicable. Again, using a civil litigation review as an example here is where the drafter of the document review protocols memorandum should list fields to code, such as document type, privilege, confidential, and personally identifiable information. When drafting the document coding instructions section, attorneys should utilize the hosting vendor’s experience to customize the coding panel to drive an efficient document reviewer’s workflow and proceed to draft the coding instructions section to mirror the coding panel order.
In addition to explaining document coding protocols, a properly drafted document review protocol memorandum will include examples of coded documents. Examples of properly coded documents drastically shape document reviewers’ impressions on what is a properly coded document, and thus should be selected with significant consideration. However, improperly coded documents also help shape document reviewers’ perceptions so, attorneys should provide document reviewers with examples of both. Returning to a civil litigation document review scenario, likely examples of incorrectly and correctly documents that should be provided to reviewers are examples of responsive, non-responsive, and relevant documents. If the examples are not abundantly clear, attorneys should draft additional notes on why each document is appropriately or improperly coded to deepen document reviewers’ understanding. It should be noted that document coding reference document examples should not be stagnant examples, yet should be updated and re-distributed multiple times throughout the course of the review. More knowledge and context about the matter is acquired as more documents are reviewed, and therefore the scope of what suffices for each coding field will likely change, so attorneys must update these examples to ensure documents are being properly coded in the current time.
As discussed above, a document review protocol memorandum serves to proactively manage document reviewers through providing document reviewers with guidance on how to properly code documents, answers questions before they are asked, and by providing reference documents where document reviewers to find additional information. Taking the time to write a thorough and comprehensive document review protocol memorandum is imperative to overseeing a quality and consistent document review. If drafted correctly, a detailed document review protocol memorandum will help accomplish the document review, while providing the overseeing attorney with additional time to focus on other aspects of the matter.
About the author
Mark G. Griffin is a California-licensed commercial litigation attorney. Located in San Francisco, Mark practices in many areas of commercial litigation, including contract disputes, labor and employment, trade secrets, and investigation matters. Mark provides clients with technology-based approaches to drive litigation forward to a desirable resolution. When not practicing law, Mark provides commentary on eDiscovery and legal technology developments in the practice of law. Mark may be reached at firstname.lastname@example.org.