November 16, 2023

 Yanina Frenklakh

discovery document review best practices

Discovery plays a critical role in litigation – and one that goes beyond finding (or overlooking) crucial pieces of evidence. Diligence is crucial, but the speed and expense of discovery can impact litigation strategy and settlement negotiating positions.

When discovery centres on a party collecting and reviewing large volumes of its own documents, savvy legal teams are quick to collaborate with a trusted litigation service provider to formulate and execute a plan of action. That approach is unavailable when discovery involves receiving documents from another party. In those cases, complications can easily arise if the producing party retains control over what information it shares, in what format, and with what metadata. Depending on what the party provides, the receiving party may face delays, added expense, and a harder time in reviewing the material it gets.

To avoid those outcomes, a litigation team must avoid a reactive or passive approach and instead establish an effective document exchange protocol early on. A well-designed and well-executed document exchange protocol streamlines the review process, reduces costs, and helps ensure the maximum benefit from the materials you receive.

The best document exchange protocols leverage the knowledge and skills of experienced Discovery service providers who know the key dos and don’ts. Some of these pertain to technical issues, but others concern litigation strategy, the litigation team’s priorities, and practical considerations (e.g., sequencing productions according to critical time periods and important custodians). Ideally, the process begins with a litigation team and its Discovery provider clarifying key considerations and needs that will shape the contours of the document exchange protocol for that particular case.  One inevitable topic is metadata. Another is a universal standard for all productions.

Every litigation matter is different, making it impossible to provide an exhaustive list of the issues to work out with other parties. The overarching question is, Does the protocol best serve your strategic, practical, and technical needs? The foundational questions include:

• Will the production format meet your requirements (technical and otherwise)?
• Is the production format compatible with your litigation review platform with no (or minimal) need for reformatting or other initial processing?

It is also crucial to clarify a host of technical matters upfront – and push back against a proposed protocol that does not adequately address considerations such as:

• Will the documents provided be text-searchable?
• Will you be able to detect duplicate documents in the data set?
• Will you be able to identify if a document is an attachment and what it was attached to?
• Can review teams sort and filter the documents by date range, including email attachments?
• Who sent emails, and when? Can correspondence be filtered according to sender, recipient, and date?
• Which documents in the production have been redacted, and on what basis?
• What mandatory issue tags or category designations will the producing party include (to help you avoid being buried under another party’s hastily reviewed “data dump”)?

Discovery may not be the most glamorous aspect of legal proceedings, but it often proves decisive. And within discovery, a document exchange protocol can have a tremendous impact on all aspects of litigation – substantive matters, budget, timeline, and more. Once litigation is underway, a litigation team can minimise discovery risk by teaming up with a service partner with comprehensive knowledge and extensive experience in document exchange protocols.