5 tips doc review - e

Five Tips to Avoid Costly Mistakes
In Electronic Document Review
Ralph Losey
National e-Discovery Counsel, Jackson Lewis, P.C.
This words and video article
shares five tips on how to
avoid costly mistakes in
electronic document review.
These tips are based on a
lifetime of legal practice and
literally thousands of
document reviews going
back to 1980. I have seen
hundreds of mistakes over
the years, especially in the
last decade when my work as
a lawyer has been limited to
electronic discovery. Many of
these blunders were made by “the other side.” Some were funny and
made me smile, others were not and led to motions of all kinds.
Keeping it real, I have made my own fair share of errors too. Those
lessons were painful, but are now deeply etched. No doubt I would
have made many more errors, but for the generous guidance provided
by more senior and experienced attorneys that I have had the very
good fortune to work with. It is with this great debt in mind that I offer
up these tips.
Some Mistakes are Funny
On the funny side of observing document review
mistakes, I will never forget the time, not too
long ago, where the other side produced
documents to us with the most important ones
placed together up front. That was a surprising
electronic zipped production to open. It was
fairly obvious what had happened. The highly
relevant documents were not mixed-in as they
should have been with the other more plebeian merely
relevant documents. Instead, the hot documents were all together at
the front of the production with the lowest numbers. (Sixth tip – never
Ralph Losey Copyright 2016, 2017
do that!) Our team laughed at the error, as we easily and quickly
found lots of great stuff to help our case. Still, we kept a discrete
silence and did not gloat. (Seventh tip – Never do that!)
Opposing counsel, who later became a friend, admitted the error to me
months after the case settled. He found out what happened a few days
too late. Even he chuckled as to how inadvertently “nice” they were.
As is often the case, the mistake did not really matter in the end. We
would have recognized the hot documents anyway. As usual when
errors happen in e-discovery, he blamed the vendor. They almost
always get blamed for mistakes, but, the truth is, vendors are
just tools of the attorneys (no offense dear vendors, tools are
important). The attorneys are almost always the ones ultimately
responsible for screw-ups.
Lessons of History
The five tips shared here are born
out of a long history of document
review. How relevant could past
legal practice be you might ask? In
1980, just like today, document
discovery was and still is a search
for documents and communications
that have probative value. The tools
and document forms have changed,
but not the basic tasks. The federal
rules have changed too, but not
that much, and the ethics of an
attorney controlled discovery system, not at all.
Discovery has always been a search to determine what really
happened, to sort out the conflicting stories and find evidence for use
at trial. Legal counsel never creates facts. That is called falsification of
evidence and is a crime. Attorneys just find the facts and then do the
best they can with them; make them look as good as possible by legal
argument and clever presentation. The discovery effort has always
been a fairly cooperative one between attorneys. It has always been a
question of trust but verify. Conversely, there have always been a
few slime balls in the Bar who do not get that, but that is what judges
(and Bar ethics committees) are for, and they soon sniff out the
weasels. All things evolve and change, but some basic patterns remain
the same.
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By the early nineties I sometimes had to look beyond paper files and
investigate computers for possible evidence. That occasionally
happened in trade-secret cases, much like today. Forensics was fairly
easy back then. My favorite ESI search and review tool was Norton
Utilities, which I had been using since the mid-eighties. Like
most computer lawyers around those days, as we were called, I was
by necessity a DOS master, and, until around 1997, a one man IT
department for my law firm. It only took a few hours a week to do that
for my then twenty person law firm, along with the help of an outside
“computer repairman.” I would always learn a lot from those guys.
The frequency of document reviews that
included computer files increased
somewhat in the early nineties as law
firm clients began using more
technologies. By then most corporations
and many individuals began to rely on
computers for work, although almost
nobody but a few techno-nerds used
email, electronic messaging and preInternet online communities. (I was
considered an odd-ball hobbyist for using
electronic messaging
with CompuServe, The Source, The Well, etc. in the mid to late
eighties, and the Internet since 93-94 with Mosaic, then NetScape.)
Instead, facsimile machines were the rage at that time, and they just
generated more paper discovery.
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Although the presence, or not, of computer files was a discovery issue
in trade-secret and non-compete cases in the early 90s, electronic
communications discovery was still not a factor. The adoption of tech
by businesses and lawyers seemed slow to me then, and still seems
slow today. (When will companies and law firms adopt the AI
technologies that have been readily available for years now?)
Discovery of computer files, as
e-discovery was then called,
started to take off in the late
nighties as corporate email
finally became popular. It was
part of the public’s discovery on
the Internet. I had the
opportunity back in 1996 to
write a chapter on Internet law
for the then popular book by
Macmillan (Que), Special Edition,
Using the Internet (3rd Ed.
1996), which is incredibly still
sold on Amazon. Mine was the
first chapter after the
introduction and was titled by
the editors “Your Cyber Rights
and Responsibilities: Law and
Etiquette.” I still smile when I
see how they tasked me not only
with explaining all of the Law of the Internet, but also proper online
etiquette. I tried to address the legal issues in 52 pages (I pretty much
ignored the etiquette part), including discussion of all of the key cases
of the day. I covered things like free speech, online agreements,
privacy rights, cryptology, crime, and security; issues still hot today.
When businesses started using the Internet too, the discovery and
review of electronic information really started to take off. That is when
electronic document review was truly born. That is also when the first
e-discovery vendors like Kroll and Attenex (now FTI) started to
become large national organizations.
By early turn of the century potential evidence in the form of computer
files and emails were multiplying like tribbles. The amount of
electronic evidence started to explode. It has been a dangerous
avalanche of e-discovery overload ever since. The needle in the
haystack problem was born that still challenges document
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review today. See Document Review and Predictive Coding: Video
Talks – Part One.
Like several others I sensed the danger in the
information explosion, saw how it was
overwhelming discovery and making it too
expensive. For that reason in 2006, again like
several others (although I was the only one
in Florida), I stopped practicing as a
commercial litigator and limited my work to
e-discovery only. Since that time electronic
document reviews have been front and center
in my practice. To be honest, I have not
even seen an original paper document in
discovery since that time, although I have heard they still exist. (Other
attorneys have shown me their paper cuts to prove it. What a
dangerous job paper document reviews can be.)
Five Videos Explain the Five Tips
The five tips shared here are rooted in the ancient history of paper
productions, and pre-vendor computer file search, but are designed
for current electronic practices and post 2015 amended rules of
procedure. After a lifetime of work in this area, there are more tips I
could provide, and will do so in the future, I’m sure, but these are the
ones that occur to me today. The videos below explain these five tips
and how you can implement them.
In this opening eleven-minute video I share what may be the
most important tip of all, the avoidance of time pressures and
resultant hurried activities.
Tip # 1 – Never Put Yourself in a Time Bind – Be Proactive
(DOUBLE CLICKVIDEOS TO RUN)
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The next video below covers the second tip, Ethics. It is always
important to do the right thing, including the production of requested
relevant documents that will harm your client and their case. Ethics is
document review, like in all other areas of legal practice, indeed, like
all other areas of life, is imperative, not discretionary. My thanks to
the legal mentors in my past who drilled this into me from my first day
out of law school. Any success I have enjoyed in my career I owe, at
least in part, to their good influences.
Call this Ethics advice the Boy Scout tip if you wish,
but it really works to avoid a panoply of errors,
including potentially career-ending ones. It also
helps you to sleep at night and have a clean
conscience. The slippery slopes of morality are
where the worst errors are made in all legal tasks,
but this is particularly true in document review.
Discovery in our system is run by lawyers, not
judges, magistrates, or special masters. It is based
on lawyers’ faithful conduct and compliance with the rules, including
the all-important rules requiring the voluntary production of evidence
harmful to a client (a notion strange to many legal systems outside of
the U.S.).
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Lawyers know the rules, even if their clients do not, and it is critical
that they follow them earnestly, holding up against all pressures and
temptations. At the end of the day, your reputation and integrity are
all that you have, so compromising your ethics is never an acceptable
alternative. The Rules of Professional Conduct must be the guiding star
of all legal practice, including electronic document review. It is your
job as a lawyer to find the evidence and argue it’s meaning; never to
hide it. This video is a reminder of a core truth of lawyer obligations as
officers of the court.
Tip #2 – Ethics and Electronic Discovery
For more of Losey’s thoughts on ethics and e-discovery, see: Lawyers
Behaving Badly: Understanding Unprofessional Conduct in eDiscovery, 60 Mercer L. Rev. 983 (Spring 2009); Mancia v. Mayflower
Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf.
J. 377 (2009 Supp.); e-Discovery for Everyone, Chapters 15-19, (ABA,
2017).
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Our third tip is Focused Concentration,
which was mentioned in passing in the Part
One video on Time, and also tips four and
five, on Worms and Check Again. The Focus
tip is based on my own experiences in
cultivating the ability to concentrate on legal
work, or anything else. It is contra to the
popular, but erroneous notion, a myth
really, that you can multi-task and still do each task efficiently. Our
brain does not work that way. See Eg. Crenshaw, The Myth of
Multitasking: How “Doing It All” Gets Nothing Done; and the work of
neuroscientist Daniel J Levitin, who has found the only exception is
adding certain background music. All document reviewers who wear
headsets, myself included, know this exception very well.
Tip #3 – Focused Concentration
For more on quality control and improved lifestyle by focused attention
and other types of meditation, see my earlier video blog, Document
Review and Predictive Coding: Video Talks – Part Six, especially the
600 word introduction to that video that includes information on the
regular meditation practices of Supreme Court Justice Stephen Breyer,
among others. Also see A Word About Zen Meditation. This practice
helped Steve Jobs, and helps Justice Breyer and countless others. It
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might help you too. It will, at the very least, allow for more focused
attention to what you are doing, including document review, and thus
greatly reduce mistakes.
The next Worms tip is a simple technical one, unique to e-discovery,
where Worm is an acronym that means write once, read many times.
I prefer to make productions on write-only or recordable only CDs,
aka, CD-R, or DVD-R, and not by file transfers. I do not want to use a
CD-RW, or DVD-RW meaning one that is rewritable.
Tip #4 – Use WORMS to Produce
Speaking of WORMs, did you know that the SEC requires all brokerdealers to preserve its records for three years in a format that
prevents alteration? That means our Write Once Read Many times
format. SEC Interpretation: Electronic Storage of Broker-Dealer
Records, 17 CFR Part 241 [Release No. 34-47806] (5/12/13).
On December 21, 2016, twelve large broker-dealer firms agreed to
pay fines totaling $14.4 million to the Financial Industry Regulatory
Authority (FINRA) over allegations, in FINRA’s words, that “they failed
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to preserve electronic records in a WORM format that couldn't be
altered.” This has to be the all time most expensive “can of worms.”
The fifth tip of Check Again, has to do with the
importance of redundancy in quality control,
subject only to proportionality considerations,
including the tip to spot check your final
production CD. I discuss briefly the tendency of
lawyers to be trapped by paralysis by analysis, and
why we are sometimes considered deal killers by
business people because we focus so much on risk
avoidance and over-think things. There has to be a
proportional limit on the number and cost of double-checks in
document review. I also mention in the fifth tip my Accept of Zero
Error and ei-Recall checks, which are quality assurance efforts that we
make in larger document review projects.
Tip #5 – Check Again
These are five tips to help everyone doing electronic document review.
They are not necessarily the “top five,” but they are all important. We
suggest you drill these five best practices into your document review
team.
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For more information on best practices of document review see these
three periodically updated resources:



E-Discovery Team Document Review Page - https://ediscoveryteam.com/doc-review/
Sixty plus Predictive Coding Articles by Ralph Losey - https://ediscoveryteam.com/doc-review/predictive-coding-articles-byralph-losey/
Electronic Discovery Best Practices http://www.edbp.com/search-review/
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