Document Review Strategies
Emails can be an incredible resource for evidence in a commercial dispute. They can provide a firsthand and contemporaneous account of the thoughts and activities of the people involved. And they are often written without a lawyer editing them or the awareness that opposing counsel will be reviewing them. But finding emails that can make good exhibits still requires a lot of work.
Why should you continue to read this post about document review?
You’re a junior associate who needs to review documents and you’re looking for advice on how to do a good job
You’re paying your lawyer a lot of money for document review and you want to know what they’re doing
You’re out of control and just reading everything you can find
Lawyers Need to Determine What Document Review Can Be Outsourced
As I mentioned in an earlier post, some document review can be outsourced. This is helpful in lawsuits where tens or hundreds of thousands of documents have been exchanged. But if you are the attorney who is submitting evidence to court, you’re going to have to review some documents yourself. Determining what to outsource and what to do yourself can be a difficult balance.
Generally speaking, I believe that the document review that leads to making a document production can be largely outsourced. This is because it is simply a function of determining whether each document is responsive to a document request and whether it contains privileged information. The reviewer doesn’t need to determine the role of the document in the case or whether it is useful as evidence.
Some parts of document review for useful evidence can be outsourced. A large document production may have buried within it a “smoking gun” confession whose relevance is apparent on its face. I believe the large-scale review of every document in the production searching for documents like this may be a good candidate for outsourcing. This is because the review can take a long time and there may be a low yield between time spent and useful documents found.
Other parts of the document review are better performed by the lawyer actively managing the case. These are the reviews for specific pieces of evidence that can be found with search terms and whose relevance is not obvious to someone who is not closely involved with the case. For example, if a lawyer wants to prove that one witness was at the office on a particular day, the lawyer may want to review her emails carefully to find her emails that suggest that she was there or invitations to the witness for meetings at the office. These documents may not seem relevant to another reviewer, but their relevance may be clear to the lead attorney.
Lawyers Should Think Like Their Witnesses When Making Search Terms
In my experience, filtering documents with search terms is the most efficient way to find useful evidence. But making good search terms requires some creativity.
Using general terms to describe the case may not be helpful if those terms appear in a lot of documents. For example, searching for a key person’s name may be useful to find a small number of documents that discuss that person. But if that person’s name is a common name, like Smith, or the person’s name appears frequently, then the term does not do a good job of filtering out irrelevant documents.
To make good terms, I try to think like the author of a helpful document. I ask, “What would I say in an email?” Maybe I would describe an incident as a “disaster” or a “shock.” Searching for words like that may reveal emails that describe surprising events, which may include the key incident in the case. As another example, I may find lists of items by searching for two items about which I am aware. So a search for two executives may yield a list with all of the executives.
Some Document Review Tips
Read emails chronlogically
Many document review platforms organize documents by document number, which is usually a function of the order in which the document was fed into the system. But reading documents in that relatively random order makes it hard for a reviewer to understand the context for the documents she reads. This is why I sort the documents I review by date. This way, I can read conversations from beginning to end, which makes them easier to follow. This also helps me understand what certain emails mean in context because I know what other conversations are taking place at the same time. And it helps me identify what documents may be missing, such as when I see an email pose a question but no email responding to it.
Look for helpful resources
Companies often compile spreadsheets or other documents that are helpful to better understand the facts of the case or to evaluate claims made by witnesses. I try to keep an eye out for documents like employee directories, monthly financial statements, and organization charts.
Take breaks
A few hours of document review can make anyone’s eyes glaze over. To maintain attention to detail, I recommend taking breaks at least every hour.
Review Spreadsheets in Native Form
Spreadsheets often have great information, but some of it may be in hidden cells or in formulas or difficult to read in a web-based review platform. I recommend downloading spreadsheets to properly review them.