Review activities: the green squares in EDBP represent search and review related legal services - Culling, C.A.R. and Protections. These legal services typically constitute the majority of the expense in e-discovery litigation. Click on the links of the bullet-points for the sub-pages that contain the descriptions of these review related best practices.
- Computer Assisted Review (CAR), aka Technology Assisted Review (TAR)
- Protections of Privacy and Confidentiality (to be written)
- Privilege Logs. (In most cases parties should agree that privileged communications generated after the filing of the complaint do not have to be logged).
- Confidentiality Agreements and Orders
- Clawback Agreements and Orders
See NYSBA Best Practices In E-Discovery In New York State and Federal Courts (2011) (Guideline 11 on search and review to protect privileged ESI and clawback type agreements).
This last section on Privacy and Confidentiality has yet to be written. Please propose best practice description of these and other Review areas in the comments below, or by email to Ralph Losey.
General. The Search and Review activities – 6, 7, 8 – are intimately connected with and flow out of Cooperation, #5. See diagram below. The green Review steps are typically oriented to Productions of documents to requesting parties, but not always. Some search and review lead only to internal Productions, such as investigations. Further, the Protections step in Review – 8 – is actually designed for non-production of ESI that does not have to be produced, such as non-responsive or privileged documents. Again, this ties back to the Cooperation step where scope of relevancy or responsivity is determined.
Although not included in the diagram slice above, it is worth noting that Step 3, Custodian/Witness Interviews, is also implicated in the Keyword Search component of Hybrid Multimodal C.A.R.. William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009).
The e-DiscoveryTeam blog has many articles on best practices in search. They were summarized by the below graphic using the Olympic rings.
The vertical chain of five rings represents the five basic methods of legal search. The five horizontal rings represent five basic insights into search that underlie best practices in review. The interlocking ring of Hybrid Modal, represents the most effective type of search today, that includes all five of the vertical rings. For more background on these ten concepts see: Day Ten of a Predictive Coding Narrative: A post hoc test of my hypothesis of insignificant false negatives.
If you have any suggestions on best practices for Review, and care to contribute to this project, or any questions (nothing case specific please), please leave a comment below or email Ralph Losey directly.