In every document review, there are certain important documents that will one day find themselves attached to a filing, blown up and used as an exhibit or endlessly picked apart in a deposition. A well-designed coding layout will provide an opportunity to easily tag and identify these documents as a priority for further review.
Every so often there will be documents that – for good or ill – have the clear potential to impact the instant case or even an unrelated matter. These documents are far more than key, they’re hot. Regardless of responsiveness, it is important to call the attention of your supervisors to these documents as soon as possible.
Hot include documents are generally understood to include any that clearly refute positions taken in the litigation. They can, however, also include those that strongly support positions. If all the team members with knowledge have informed the case team during interviews that they would never consider doing X, a hot document would include a set of meeting minutes clearly show that it not only was X considered, but that it was attempted. Hot documents can also sometimes reveal concerning details of issues unrelated to the instant litigation like employee misconduct, individuals suffering mistreatment in silence, or other issues that create the risk for additional litigation or embarrassment. While these documents are likely non-responsive, they nevertheless require follow-up.
Email, if available to you on your project, can be the most efficient method of alerting supervisors to these documents. A well-formed email that identifies the problematic consent in a clear and concise manner is easy to examine and forward to those best equipped to address the issue. Make certain to include the document identifier, date and important parties. My preferred format starts with the ID and information, then includes a short explanation.
99445123: 3/12/12 Email from Smith to Jones – Directs Jones to perform task Y.
I personally prefer for the explanation to identify what occurs in the document but not to editorialize or to include actual quotes. Others have different preferences – one supervisor for whom I once worked wanted only the “hot” quote from the document along with the ID. Another didn’t want us to provide any details about the document, just to send a list of important IDs at the end of the day in a format he could easily paste into a search. Ask your supervisor what they prefer.
Timing of these reports is also important. In some situations a single “end of day” email is best, particularly if your supervisor is responsible for numerous matter. I tend to always be in the databases my teams are using, so I prefer to get immediate reports of each document. Generally, I take a look at my next opportunity and then update my forward reporting.
If you don’t have access to email, there may be a special database field you can use or another process preferred on your project for highlighting these issues.
Don’t, however, feel the need to “crack the case” with every document. Sometimes, particularly at the beginning of the review, there is a potential to assume that every document might be critical. Often, they are not. Work with your peers, supervisors and quality control attorneys to help develop and understanding of what everyone is seeing so that you can better judge the importance of your population.