What is eDiscovery and Document Review?

What is the difference between eDiscovery and document review? How do you review a legal document? What on earth is tagging? These are all common questions that have plagued the hearts and minds of aspiring legal professionals since records first began.

Electronic discovery (also known as eDiscovery) is the process of identifying, collecting, reviewing and producing electronically stored information (ESI) in response to a request for production in a dispute or investigation. Its partner in crime, document review, is the final stage of eDiscovery prior to production. One of the legal world’s bread and butter tasks, document review requires sifting through all manner of documents for information relevant to a given matter. In an era where digital communication is at the heart of most transactions, eDiscovery and document review have become critical processes in legal proceedings. With vast amounts of data being generated daily, understanding how to navigate and analyse this information is essential.

With this in mind, we believe that such important tasks deserve an industry-leading, one-stop-guide. Drawing on the incredible wisdom of Richard Legge, Partner and Head of eDiscovery at Mishcon de Reya, alongside a group of Flex paralegals, we’ve taken the time to break down these complex processes, and give you a simple insight into the world of eDiscovery and document review.

What is eDiscovery?

eDiscovery can be likened to a treasure hunt - an extensive, meticulous quest for the most valuable information you can find. Instead of using a map and compass, eDiscovery professionals collect and search through computers, phones and other digital devices to find valuable information like emails, messages, images and documents. This data is then processed and loaded to a document review platform (e.g. Relativity). The review of this data by legal professionals is then essential in building a clear picture of events, creating timelines, and identifying key players in a case.

eDiscovery ensures fairness in legal proceedings. Governed by strict rules, it requires all relevant information, whether this hinders or helps your case, to be shared with the  opponent during the ‘discovery phase’. This phase is crucial for maintaining the integrity of the legal process, ensuring both sides have access to the same evidence, and allowing them to argue their cases on a level playing field.

What is Document Review?

Now, if we take a moment to go back to our treasure hunt. You have searched and scoured the lands for your treasure, with your trusty parrot, map and compass in hand. Finally, at long last, you arrive at the point where X marks the spot. You dig and dig and dig, and dig some more, and what do you find? A jewelled, spectacular box of documents, of all shapes and sizes. Your job as the document reviewer is to meticulously, carefully search through this box to find all the documents which are of distinct relevance to your legal case.

While eDiscovery is the comprehensive search for digital clues, document review is the detailed analysis of these clues to determine which are the most relevant. In the world of our treasure hunt, eDiscovery is the pirate crew’s long search for treasure, and document review is searching through that treasure to find the most valuable jewels.

What type of materials are reviewed in e-Discovery?

Despite the name, the document review process covers a huge range of mediums outside of strictly traditional paper documents. These include, but are not limited to, audio and video files, chat applications, social media posts, and financial records. Following COVID-19, data from platforms such as Microsoft Teams and Zoom have also become an integral part of the eDiscovery and document review process. It will thus come as no surprise that as technology continues to advance, so too does the volume and types of documents to review.

How will Document Review change in the future?

As document volumes continue to grow, advancements in technology will further transform how the legal industry conducts document review projects. Over the past decade, various tools such as predictive coding, AI-powered analytics, and machine learning algorithms have significantly improved efficiency by helping legal teams to quickly identify the most relevant documents, with an average increased speed of over 50%. When it comes to determining document relevance, this technology has enabled accuracy rates as high as 95%.

These technologies also allow for more accurate and faster sorting, categorisation, and prioritisation of large data sets, reducing the time and cost associated with manual review. This is primarily achieved through the accurate identification and classification of documents which are relevant (reviewed manually) and not relevant (sampled to confirm the classification). As these tools continue to evolve, we can expect even greater integration of artificial intelligence, enhanced natural language processing, and automated workflows which will streamline document review processes, making them more precise and less labour-intensive.

What roles are there in e-discovery?

eDiscovery Project Manager

The eDiscovery Project Manager plays a crucial role in overseeing the entire eDiscovery process, from data collection to the final production of electronically stored information (ESI). They ensure projects run smoothly, on time, and in compliance with legal teams, IT staff, external vendors, and clients, ensuring clear communication throughout the process. Their principal role is to leverage the technology to ensure that the review runs as smoothly as possible whilst ensuring that the correct technology is deployed to deliver the greatest efficiencies.

Document Review Team Leaders

The Team Leader plays a crucial supervisory role within the document review process, directly managing a team of document reviewers. This role involves overseeing the daily operations of the review team, ensuring that all tasks are completed accurately, efficiently, and within the required deadlines.

The Team Leader is responsible for distributing workloads among the reviewers, monitoring progress, and addressing any issues or challenges that arise during the review process. They provide guidance and support to their team, ensuring that everyone is aligned with the project objectives and understands the legal requirements for relevance and privilege. Additionally, the Team Leader may act as a liaison between the review team and the eDiscovery Project Manager, providing updates on the team's progress and any potential issues or changes which need to be made to the workflow.

Document Reviewer

Document Reviewers are on the front lines of the eDiscovery process, analysing and tagging relevant documents that are pertinent to the case, whilst excluding any irrelevant material.

Further, they also determine whether certain documents are protected by the ‘attorney-client privilege’, which safeguards private conversations between a lawyer and their client, ensuring that sensitive information is properly flagged and protected. Privileges cover both the lawyer's advice and the client's information, meaning that clients can speak openly with their lawyers without worrying that their discussions will be revealed in court. Additionally, the ‘work product doctrine’ protects documents created by or for a lawyer during the preparation of a legal case, keeping them confidential. It includes notes, strategies, and research; and covers materials from the lawyer, their staff, and others working on the case.

The role also often involves the use of specialised eDiscovery software to assist in the review process, allowing for more efficient sorting and filtering of documents; and the team of Document Reviewers work under the guidance of the Team Leader to meet project deadlines, and ensure the quality and accuracy of their reviews.

How do I get involved in e-discovery?

At Flex Legal, we offer a range of opportunities for law graduates and aspiring lawyers to gain valuable experience in eDiscovery and document review. For example, just last year, we collaborated with global magic circle law firm Freshfields, and placed over 420 paralegals across 60+ projects. This experience has been central to providing many aspiring lawyers with the opportunity they need to break into the industry, and you could be next!

eDiscovery and document review are vital components of modern legal practice, and all you need is a keen sense of professional judgement, a strong grounding in ‘black letter’ legal knowledge, and an eye for detail. By understanding these processes and staying informed about the latest technological advancements, legal professionals can better navigate the complexities of today's digital landscape. So, ready to dive into the world of eDiscovery?

Explore the opportunities at Flex Legal and kickstart your career in this exciting field. Learn more about getting involved here.