Anyone who has directed managed document review projects will tell you this: No two managed reviews are the same. Even when a fact pattern of a new case seems (at the outset) strikingly similar to an old case, you can trust that a twist will arise that requires new case discovery to adapt in ways that could not have been anticipated. Consequently, anyone who approaches a new managed review project with a hard-wired approach is likely in for an unpleasant surprise; there simply are too many variables.
With so many factors that can’t be controlled in managed review, a prudent lawyer minimizes risks by embracing practices to actively manage those elements that can be controlled. Despite the wide variation in managed review projects, there are guidelines that apply to them all.
1. Design a structured managed review workflow
Design a workflow that is thorough and structured but build in flexibility to quickly adapt to change. The “art” of managed review is in finding (and maintaining) an effective balance between structure and flexibility.
Given the dynamic nature of most complex cases, a managed review team must be able to make quick transitions—without losing momentum or sacrificing efficiency. This adaptability is a byproduct of thorough planning, ongoing quality control and timely communication during each stage of the project’s workflow.
2. Select a partner with relevant managed review experience
Not only do you want a partner that has relevant experience with managed review, but it also can be beneficial to choose a partner that has “bench strength.” As a managed review project unfolds, it inevitably presents gnarly issues that require timely—and well-informed—judgment calls. That’s when you’ll appreciate the benefit of having a team that’s custom selected for experience in areas specifically relevant to your matter.
Given the dynamic nature of most complex cases, a managed review team must be able to make quick transitions—without losing momentum or sacrificing efficiency.
Also, no matter how clear a discovery mandate appears to be at the onset of a managed review project, you must be prepared for possible expansion of the scope of discovery. When a deadline looms and your “document universe” grows unpredictably, you’ll be glad to have a partner that can bring well-qualified reinforcements without costly delays.
3. Practice quality control on an ongoing basis
It’s important to practice quality control on an ongoing basis because it can ensure that potential issues are addressed early in the project life-cycle. When discovery deadlines are tight, a legal team needs continual reassurance that quality control measures are meeting or exceeding all standards.
Make sure your managed review partner provides you with frequent updates on productivity (both by groups and by individuals) and quality metrics for all key attributes. Also, see that samples of work in progress are shared with senior counsel early in the process, so that any necessary changes can be made quickly and efficiently. If any aspect of the system workflow is producing less-than-optimal results, you need to know now.
4. Thoroughly document the managed review project workflow
Maintain a detailed log of every significant element of the project and document review workflow. No matter how careful your processes and how thorough your results, the managed review is vulnerable if it isn’t carefully documented.
When an opponent challenges the validity of your findings, you must be able to defend them with a buttoned-down audit trail. Experienced managed review teams often make this documentation the responsibility of a single person—a detail-minded individual who takes his/her role very seriously.
5. Communication is key
Communication is important to any project, but during a managed review process sometimes it’s even important to over-communicate. A managed review can be highly complex and extremely fast moving. Complexity and speed, however, are only part of what makes managed review projects so challenging for many firms. An additional variable is the sheer number of team members who need to share information and coordinate activities in real time.
This close coordination requires communications that are clear, accurate, timely and double-checked. When there is any doubt about whether important information has been received and understood, over-communicating is a small price to pay for peace of mind.