Over the past several years, the ediscovery industry as a whole has worked towards building and using solutions to reduce the amount of documents included in review, thus reducing the cost of review. We have seen many case studies that reflect that the use of technology has helped achieve this. We are able to use technology to cull and organize documents for review. However, one area where we can still strive to reduce cost is in using technology to also reduce the volume of documents in privilege review, both in the immediate matter and in future matters!
Potentially privilege document populations are often over-inclusive, resulting in significant review costs. The privilege review process is also thought of after the fact when perhaps having a plan upfront would help reduce the bloat of over-inclusiveness. By leveraging technology and implementing workflows at the onset of an ediscovery project, you reduce the volume of documents for review, increase the precision of privilege decisions, and are able to apply the analysis learned on privilege items in new matters moving forward. Here are three ways to achieve this:
Improve Privilege Identification
Analysis around using keywords only to identify privilege has shown a high hit rate but with low precision. Keywords are ineffective without context. Counsel can take potentially privilege hits to the next level and reduce the population identified by keywords by seeking out direct communication in the metadata header. These search methodologies specifically identify direct communication of privilege as well as third-party communication, which is often a culprit of over-inclusiveness. Additionally, using analytics to conceptually identify potentially privilege provides greater precision on the document population going to reviewers.
Create Efficient (Repeatable) Workflows
Work with your providers or in-house technology teams to develop workflows for identifying potentially privilege documents for review as well as sampling documents marked not privileged. Planning workflows in advance helps to organize the data population ahead of time to keep eyes on review costs down. Too often these workflows are looked at last when they can be worked on upfront simultaneously during responsive review. Use of analytics to inform your team of what the data holds helps define the review approach as it pertains to the merits of the case.
Most importantly, look back at the metrics on the volume of documents identified potentially privileged compared to what was actually marked privileged. We often look back and identify the “what went wrong” when things get reworked, however, it is advised to look back on all work to measure where things were a success, what lacked, and where things could have been done better. For matters that leverage a repository of data, understanding what has been marked privileged time and time again will help you apply those calls in matters before they even start.
In a time when data volumes increase exponentially, it is critical to make sure to reduce costs by every means possible. Using advanced technologies to identify a more refined set of potentially privileged documents greatly reduces cost by increasing the precision of privilege calls and reducing document review volumes. Spending time up front planning workflows and your approach to review streamlines efficiencies and reduces cost to re-review items. Perhaps the one approach that is the most forward-thinking, the least done, and would create huge upfront cost savings is a post-mortem analysis of the privilege review. As Winston Churchill once said, “Those who fail to learn from history are condemned to repeat it.” Why not apply the lessons learned and analysis of past privilege reviews to future matters?
To discuss this topic more, please feel free to reach out to me at JHarrison@lighthouseglobal.com.