Mark Lyon

eDiscovery Attorney

June 15, 2013

Please Google, Let Me Pay

As everyone knows, Google Reader will soon be no more. I’ve tried many replacements but have found none which don’t require annoying compromises. I don’t want just a mobile app. I don’t want a special plugin. I want to be able to move through all my feeds on the keyboard, instead of just the items within a feed. I’d like updates in some reasonable timeframe.

What I want is to keep Google Reader. It’s my most frequently visited website. I log in first thing each day while on the bus. I monitor in the office while waiting for searches to run. I check for final updates before going to bed. Google Reader keeps me plugged into Google’s other products – since I’m already there, I’m more tempted to use Docs or Gmail or Youtube over other alternatives.

But, in addition to the loss of Reader, I’m noticing that the once-acceptable Google Ads are getting annoying. Visit a Youtube video and you’re forced to watch a long ad. I clicked a link in an article to a musician’s performance the other night and was presented not with that song, but a full length version of someone else’s music. Perhaps that would have been clever, in a sort of Pandora style, if it had been in any way related to the music I wanted to hear, but it wasn’t.

I fear Google is losing its way.

I have a proposal, Google. Please let me give you money to support your services. Calculate how much you make from showing me ads that I ignore and the cost of the burden I place on your infrastructure. Set the price at that, plus some more.

I will happily give you a non-trivial amount of money each year for Reader, Gmail and an ad-free internet experience. Perhaps throw in some additional storage space if you like, or have my Reader items take up space in my existing allotment to entice me to buy more. Heck, offer a premium tier over that for people who might want support and assistance. I suspect a number of business users might be willing to shell out the cash.

With Wallet, Google has already resolved how to collect money from users. One of the largest drivers for websites needing to base their income stream on advertising is the complexity of collecting money from users. That problem is solved. Google has even shown its ability to do that at scale by moving to paid services for Google Apps users.

There is a place for free services and I’m glad that Google provides them. The internet is growing up, though. It’s not evil to ask users to pay for what they use. Quite the contrary; users will appreciate the option of supporting the services they use.

May 28, 2013

Law Ratchet’s Content Racket

Scott Greenfield over at the incredible blog Simple Justice recently noticed that his site’s RSS feed was being republished on the new Law Ratchet website. The site seems to be a curated collection of legal blogs republished in such a manner as to appear to be content from the website itself (instead of operating as a targeted RSS feed reader and curator).

We had far more of a discussion than is appropriate on Twitter, and he took a few minutes to put together a post on the copyright infringement.  I then found that my thoughts were far too lengthy to fit into his comment box.  

While I think Law Ratchet is in the wrong here, I do see the potential for a similar service that not only respects the wishes of copyright holders, but provides significant value for those who wish to read their law-related RSS feeds in a single, attractive, web-based interface.

For me, “scraped” content actually involves screen-scraping, a data collection method most frequently associated with content that doesn’t offer an RSS feed. For example, I’ve used scraping to pull information from a county recorder’s website to populate a database of deed of trust records for analysis. This type of scraping is hard to do and even minor changes to the page being scraped can break the system.

RSS, on the other hand, provides a feed that is designed to be used by the recipient in a way appropriate to their need. It’s formatted for easy use and separates the various elements of the document so that it only need be parsed and formatted for viewing.

An entirely appropriate use RSS feeds by subscribers is through a web-based feed reader. Other uses might include using the feed in a purpose-built reader app on an iPhone or even using the content to automatically file copyright registrations. Few feed publishers would take issue with a web-based feed reader. After all, Google Reader and Bloglines before it have long been incredibly common tools for consuming RSS feeds (including your own). New tools like Flipboard also make use of your RSS to display your site’s content for subscribers. Few have objection to them and with the coming demise of Google Reader, there’s a new market for web-based feed readers.

I understand the objections to sites that use scraped content. In general, these sites are simply using the content of others to generate traffic (along with advertising revenue or some SEO benefit) for their website. These sites try to make the source content appear as their own, serving not as a reading tool for willing subscribers, but co-opting the content for their own gain.

Here, it seems that Law Ratchet is using only RSS feeds as their data source. I was unable to find an example of them engaging in traditional screen scraping. At the same time, though, it’s clear they’re not just using the feed as it is provided: A recent Volokh post appears on the Law Ratchet site and is missing the “Email, Add Comment, and Share on Facebook” links that are present in the bottom of the feed entry. Most troubling, some of the feed content that remains has been altered. For example, paragraph and blockquote tags are rearranged to suit Law Ratchet’s formatting desires instead of that of the publisher.

They almost go out of their way to hide the source site – Instead of linking the headline to the real post, or the title of the site to the real site, the only link back is a very small “View Original” button at the bottom of the page, next to numerous other buttons that perform internal actions on their site. In most cases, one of those internal function buttons is actually labeled with the name of the source site. Clicking it, though, keeps you on the Law Ratchet site, making it appear that major website are simply subparts of Law Ratchet. This provides no real value; it just serves to repurpose the work of others for their own gain and creates confusion as to the origin.

While there is some value in having someone else curate a collection of sites containing high-quality content; Law Ratchet doesn’t seem to offer much ability to customize their choices. I can’t see how to remove certain blogs from their sections if I don’t want to read them. I can only select “key words” that might interest me.

Further, they’re not taking any steps to minimize their impact on the sites they republish. Their robots.txt doesn’t restrict the web-based version from being indexed and even though they’re re-writing some of the content, don’t seem to be altering the links or presenting headers to tell search engines that this is not original content. As a result, the legitimate site may get penalized by search engines that now see their content as spam. There’s also no way for sites to automatically opt out of inclusion (short of identifying their IP and blocking it from retrieving your feed).

Clearly Law Ratchet, in addition to picking a completely ridiculous name, has made some serious errors here. I have no doubt that Mr. Randazza will ensure those are remedied promptly.

What’s more interesting to me, though, is how one could provide a similar service legitimately in a way that provides added value to the reader and keeps content publishers happy. I imagine that service being quite similar to Google Reader, but admit that others may have more novel options.

First and foremost, it’s important that the content appear only at the request of the user. Much like my Aereo service, having a remote system that I control is far different than a service that records all the content and then lets me see all of it later. Meltwater‘s clipping service, for instance, took the latter approach and found itself on the wrong side of Castle Rock Entertainment, Inc v. Carol Publishing Group, 150 F.3d 132, 145 (2nd Cir. 1998), where “the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but [with] whether the secondary use usurps or substitutes for the market of the original.”

Such a site has to get out of the idea of the content being their product and instead have the platform as their product. Trying to exert control over source material by rewriting it, removing bits the site owner doesn’t like and otherwise making it extremely difficult to return to the source is a dangerous tack to take. As a platform, though, you take on different goals. You would want to scare away automated indexes by applying an appropriate robots.txt policy (Google, for instance, explicitly prevents index with a “Disallow: /reader/” instruction). You’d focus on adding value to the interface (though, I must admit, I find the minimal styling of Law Ratchet attractive) and functionality of the site.

I like the idea of curated content – someone taking the time to identify the best sources of specific types of information. I don’t want to be locked into only that person’s choices, however. Perhaps they enjoy a certain source I do not. Perhaps I have discovered something they’ve not seen. Google Reader had several themed categories of content which would auto-subscribe me to certain feeds. I made heavy use of this feature and found sites that I’d have never accessed without it. But, I chose to see those feeds and could even turn them off as desired. This is significantly different from Law Ratchet’s set-up.

One need not forgo profit in such a venture. Another case referenced in Meltwater was Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985), which noted that the “crux of the profit/nonprofit distinction is . . . whether the user stands to profit from the exploitation of the copyrighted material without paying the customary price.” Meltwater was using sources that usually have a significant cost component attached. None of the blogs I visit, however, charge for access.

Without altering the feeds, it is entirely possible to provide advertising on the site or (a model I think would be best for a web-based RSS reader) by directly charging the users of the service. I read a lot of feeds (according to Google Reader I read 36,110 items, clicked 264 items, starred 19 items, and emailed 83 items from my 477 subscriptions over the last 30 days) and would gladly hand over a non-trivial amount of money to someone who made me a good replacement. For the moment, I’m planning to move to TheOldReader, but I’m always on the lookout for a better option.

I think there could be value in a service similar to Law Ratchet – that is, a targeted RSS reader for specific categories of sites – but I don’t think Law Ratchet hit the mark. They made something that was pretty, but lost sight of the built-in risks that come with designing something that relies on the work of others.

May 27, 2013

Draw The Boxes Straight

Redaction is one of the most complicated eDiscovery tasks to complete. In addition to the task not lending itself to verification by technology (though this is changing), the work often requires a significant amount of attention to an exceedingly tedious task. The goal of a redaction project, though, is absolute consistency. Each person applying redactions should be redacting in the exact same way, creating a final product that gives the reader confidence that the redacted content was appropriately withheld.

There are many opportunities for error – missed sections, repetitive content in successive version of a thread, row or columnar data that requires carefully counting or identifying target areas across multiple pages and even simple disagreements among a group over the extent of the information to be redacted. Those issues can usually be resolved through proper quality control and communication.

The most bothersome redaction issue, though, can be nearly impossible to fix once it spreads through the population: the failure to draw straight lines. Nothing makes a redacted document more questionable than poorly drawn or inconsistent redactions.

Gone is the redaction tape of yesterday (or worse, the Sharpie and photocopy method much loved by some, and demonstrated in the Benghazi e-mail above). With today’s computer-based tools, most redaction is done on a TIFF or native version of the document. Native redactions usually clearly and accurately obliterate the document’s content, removing this worry. TIFF redactions, however, open up the opportunity for drawing boxes of variable size.

Bad Redaction Example

All too often, attorneys will focus only on the instant redaction without considering the document as a whole. This result often leaves paragraphs redacted line-by-line with separate, inconsistently-sized boxes for each one. Instead of aligning on the margins, where possible, the redaction will stop at the end of the last character on the line, leaving a ragged appearance. With bold black boxes, differences in vertical height of each line are also apparent, leaving ugly and unnecessary gaps.

Good Redaction ExampleWhen one considers the page as a whole, however, it’s easy to create large blocks of redaction with uniform edges. This clean, consistent look is not only professional but it eliminates opportunities to speculate about the hidden content based on size and length. The large blocks are easier and faster to draw, reducing time spent performing redactions.

Not every edge will match up, and as seen in my example, some of the boxes required several overlapping redaction boxes to accomplish, but the effect is far more pleasing and the uniform sizing gives a uniform look to the entire population, regardless the size of the redaction team.

Similarly, redactions in Excel or other spreadsheet-based data can look its best when one uses the sheet’s gridlines as natural boundaries for drawing redactions. Instead of leaving half-redacted cells at the beginning or end of a redacted range, obliterate the entire row or column. The boxes will naturally fit within the cells.

Even in spreadsheets, redacting groups of redactible content in a single box can save precious time. I’ll never forget receiving an incoming production of spreadsheets containing thousands of rows. Each had been redacted one line at a time, only to leave a row or two on every third or fourth page visible as relevant to our matter. Opposing counsel had requested numerous delays to prepare these documents, but it was clear much of the time they spent performing the redactions had been wasted. Instead of just drawing one big box to redact the entirety of certain pages, they placed numerous line-by-line redactions and left gaps in cells with no content. The effort was unnecessary, produced an error-riddled result and likely cost the client an exorbitant amount of money.

In cases like that, where numerous redactions are needed on large documents, the cost of a native redaction tool would likely pay for itself quickly. It’s important to suggest the use of the best technology for the need. But sometimes, it’s still going to be necessary to draw boxes on a TIFF. As long as that’s still needed, make certain to draw the boxes straight.

Benghazi Email courtesy of the US Government, via the Washington Post.
May 11, 2013

Flexibility Is Key

It’s Saturday at 3pm. Over a dozen members of my review team have been in the office since 8am, helping to complete a population of documents that are urgently needed for Monday. While we had a bit of advance warning, we received approval for weekend work less than 24 hours ago. Most of the team had met their weekly hours on Thursday and were looking forward to a long weekend. But, when their help was needed, they answered the call. It’s impossible for me to thank them enough for that.

Sure, there are rewards for working the weekend (additional pay, extremely casual attire, fewer distractions, and sometimes even a free lunch or dinner) but those rewards don’t always make up for the inconvenience or last-minute notice.

Life as a contract employee is hard. One never knows how long the next break between projects will be. As a reviewer, I personally jumped for overtime; it allowed me to store up some unbudgeted cash for the lean times. Many, however, value their personal time far greater than I could ever pay; weekend work that might cause them to miss their Saturday yoga class is out of the question.

Contract attorneys who can be flexible with their time, however, are highly desirable on projects. To the extent possible, I try to ensure a team is large enough to eliminate the need for weekend and overtime work. Litigation is filled with uncertainties, however, and schedules or populations must change to meet new needs. Even projects that require rigid hours and have strict caps will occasionally run into unexpected emergencies. When staffing, I try to always include at least a few people who have demonstrated flexibility.

This desirable trait isn’t just limited to time. Some team members can’t work outside of certain hours, but are willing to help with special assignments during the day. Often, as the result of feedback, there will be follow-up items that need to be resolved in existing documents. I often rely on team members with a strong ability to focus on certain tasks to solve those issues. A new issue is identified as responsive? I’ll set up a special set of documents and they will focus on finding the newly-relevant docs. Complex spreadsheets need to be decoded and analyzed for a specific transaction? They’re happy to dig into the problem and learn how to best identify the information (and possibly even teach us innovative ways to use a native app or review tool in the process). The project they worked on three months ago has two extra days of work? They’re willing to focus their time and experience on that matter. Need a last-minute courier? Someone is usually happy to make a delivery.

Knowing that part of the team will help when things get complicated makes my life as a project manager far easier. I try to reward the commitment; flexibility demonstrated during a project is frequently a decisive factor when choosing which team members to retain as projects wind down.

Having a team that is flexible makes it easy to be flexible in return. Instead of rigid hours, I favor generous opening and closing times with an hour cap. If your project is limited to 40 hours, there’s often little reason to insist everyone report at 9 and leave at 5. Instead, I try to maintain a schedule that would allow a team member to complete their hours in four days (usually, 8 to 8). Everyone can arrive and leave on a schedule that best suits their needs, take breaks or vacation days as needed and not worry that a sick child, doctor’s appointment or late bus will cause their paycheck to fall short this week.

Yoga Class Image courtesy of lululemon athletica.
May 2, 2013

Political eDiscovery Fight in Wisconsin

ACEDS has an interesting article today on a political fight over deleted emails in a Wisconsin redistricting case. Democrats allege that Republican staffers initially deleted a handful of emails; their investigation now points to much more significant deletion – on the order of hundreds of thousands of documents.

The users accused of deletion filed affidavits indicating that their computers were used for far more than redistricting and that the deleted files were not related to that matter. It appears that the computers in question had both mirrored internal drives and an external backup.  The external backup was, at some point, corrupted.

Adam Foltz, one of the users, filed an affidavit indicating:

My computer was not used solely for redistricting. While I maintained redistricting files on my computer, I continued to use my computer for my other legislative activities. Accordingly, there would naturally be many deletions of information on my computer, but those deletions are not deletions of redistricting files. I created much information on my computer after the redistricting trial as it related to my legislative responsibilities and much of that information was supplemented and deleted during the ordinary course of my activities.

Tad Ottman, one of the other users accused of deletion, indicated that the presence of CCleaner on his machine was unrelated to redistricting:

I installed commonly available software entitled “CCleaner” on my computer. The purpose of such software is to allow the computer to run faster and clean Internet Explorer temporary files, history, cookies, super cookies and index.dat files. It does the same for Google and other system related files as opposed to individual files. The CCleaner software was not used on my computer to clean files that I had saved, including redistricting files. Accordingly, there is nothing inconsistent with my having CCleaner software on my computer and maintaining all my redistricting files. It is not the purpose of CCleaner software to destroy files that had been preserved on the computer and I never used it to destroy such files. Instead, it is to clean out unwanted Internet caches and temporary Internet files and system files that make the computer run more slowly.

ACEDS has several of the filings.

When working on tasks that are likely to generate litigation, it can often be beneficial to use a separate system for those activities.  While not always practicable, such an arrangement can greatly simplify the collection process and reduces the risk of disclosing unrelated activities.

April 30, 2013

Minnesota Updates Discovery Rules

Ann Fisher -

In July, recent changes to Minnesota’s Rules of Civil Procedure take effect. These rules made significant changes to Rule 1 and Rule 26, pushing for proportionality, enhanced disclosure and greater collaboration. Brendan Kenny at Law Technology News has a useful update.

The addition to Rule 1 is particularly important:

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues. The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

In far too many cases, litigants are sucked into a discovery process that is inappropriate for the needs of the case. The additions to the rule, in 26.06 (which closely mirrors the FRCP), also push the parties to have a discovery conference and set forward an actual discovery plan. Failing to promptly meet and confer can lead to all sorts of discovery headaches, missed opportunities and needless expense.

The 26.06(c) discovery plan requirements serve as a good framework for considering and resolving the important issues:

  1. what changes should be made in the timing, form, or requirement for disclosures under Rule 26.01, including a statement of when initial disclosures were made or will be made;
  2. the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
  3. any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
  4. any issues about claims of privilege or of protection as trial-preparation materials, including-if the parties agree on a procedure to assert these claims after production-whether to ask the court to include their agreement in an order;
  5. what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
  6. any other orders that the court should issue under Rule 26.03 or under Rule 16.02 and .03.

Before this meeting, it is wise to work with your eDiscovery team to identify any items of concern that should be addressed. If your team is in-house, they may have a standard set of items to consider. If you will be working with a vendor, but have not yet selected them, making that choice before the meeting will place counsel in the best position to reach meaningful and effective agreements.

Conference Room image courtesy of Ann Fisher.
April 23, 2013

Respect The Reader - Media Arts Center San Diego Digital Gym

Today, Sam Glover appeared in a couple of promo videos for the upcoming Lawyernomics conference. The key message of his videos? If your blogging is motivated by marketing, instead of a desire to provide enjoyable and informative content, it’s going to suck. He did this, of course, in videos that are actually nothing but marketing for the Lawyernomics conference.

The first video, for example, runs for 99 seconds. There’s a second video of similar length, discussing basically the same thing and shot at the same time, but no explanation is offered as to why two videos were needed. Of the first, 45 seconds were actually devoted to Sam talking about the subject. 54 seconds promote the conference and the sponsors. That’s right – in a pair of videos where Sam actually says one should “respect the reader” and focus on meaningful content – more time is devoted to marketing than to substance.

The mind boggles.

I think Sam Glover and Kevin O’Keefe inadvertently pointed out another way to make your blog post suck: including two poorly lit videos with terrible audio¹.

I enjoy working with colleagues on document review projects who are working to build their own practices. It can be exciting to hear about their adventures and they tend to have a good attitude toward their work. Starting a law firm in today’s market is difficult. It’s hard to know what advice to take; the siren song of the marketing crowd is certainly attractive. However, I have a hard time trusting people who offer to solve all my problems if I sign up for their program, buy their book, or subscribe to their newsletter, if they don’t also show a track record of success at anything other than selling their program.  Transparent marketing like these videos turn me off completely.

¹ If you are going to try and create a series of videos, though, don’t try and superimpose yourself onto a computer generated wall of logos. Instead, spend a few minutes to arrange some decent lighting. Find an attractive background. If you’re using your iPhone or another cheap camera, it’s possible to add an external microphone to make certain you’re clearly heard. I frequently film meetings and trainings using the FiLMiC Pro app on my iPhone. I was able to purchase a tripod, a few lights and an external microphone for under $100; the results aren’t perfect, but have been quite satisfactory.
Interview video lighting image courtesy of Media Arts Center San Diego’s Digital Gym.
April 14, 2013

Bringing Technology In-House – Consider Lock-In Costs

Daniel Garrie recently posted Ten Tips for Managing eDiscovery Vendors on the ACC website. His tips, however, focus on bringing additional technology in-house. While bringing some parts of the process in-house may make sense in some organizations, it’s important that legal departments strongly consider his first tip – whether the decision to  bring technology in-house makes sense for their corporate resources and culture.

Frequently, as a cost-saving measure, a company will go through an expensive and time consuming process of selecting certain technologies to fit their immediate needs. A few years down the road, however, many find that the costs of keeping that technology current were not considered. Attorneys and compliance teams are then stuck with outdated, inflexible or inappropriate technology for their needs. Even when the solution stops meeting the immediate need, it can be difficult to secure approval to seek a more appropriate solution.

Many eDiscovery vendors stay on the leading edge of technology, and couple their expertise with affordable, predictable cost structures. When looking at the costs involved in bringing technology in-house, weigh the costs of ongoing maintenance and expansion against the results of a well-crafted RFP for hosted or managed services from a selection of trusted vendors. Consider selecting specific options for certain types of cases (either by content or size), allowing your team to choose the correct option for their matter. Seek pricing of specific services and for comprehensive solutions. It may be able to reach the same level of cost savings without locking your company into one, self-hosted technology solution.

Old server image courtesy of Mark Stam.
April 12, 2013

Small Firm Space: Consider Co-Working

This week, Jordan Rushie brought up the importance of office space. Carolyn Elefant followed up and noted that affordable office space would be “almost a no-brainer even for a complete newbie.” Unfortunately, even when faced with the example of Jordan’s beautiful yet affordable office space, she brings up a concern that affordable space would be undesirable, noting that “bringing a client to a dingy office that reeks of cigarette smoke and is located in a seedy part of town isn’t exactly going to inspire confidence or generate client referrals.”

Carolyn is in DC. Because of past work I’ve done there, I have a passing familiarity with its office space and haven’t seen it to be drastically different from some of the options available here in New York. If anything, I would think that the smaller buildings in some parts of DC may provide access to additional small-firm appropriate spaces than one could find in NYC.

Before I took a full time position with my current employer, I was working to build my own base of private clients. My work focused on intellectual property issues. I was fortunate enough to have several inventive and energetic entrepreneurs referred to me as clients. Most were happy that I was able to come to them to help work through their issues, but several were also just starting their businesses and had no space. Not having my own offices cost me all but one of those clients. The conference rooms available at the local bar association were inadequate – they were worn out, overbooked and frequently I’d arrive to find them in complete disarray from a discourteous previous user. Asking to meet at Starbucks would have been far too embarrassing.

Even when I didn’t need space to meet with a client, I found it incredibly difficult to get motivated to work in my apartment. Try as I might, I couldn’t replicate the motivation that came with getting out of the house and going to an actual office. Even going to Starbucks and setting up there was dramatically more productive than firing up my laptop and watching the walls close in.

It was at this point that I discovered co-working spaces with private offices. In New York, I became an instant fan of Sunshine Suites, though there are plenty of other options. In DC, some of the spaces seem too focused on an open plan that is unsuitable for the legal work, but others seem to be perfectly reasonable and affordable.

Sunshine Suites focused on modular groupings of high-walled cubicle desks. Many of the services a business needs – reception, copiers, printers, phone systems and such – were already in place and part of the rent. Conference room time was included for client meetings, everyone has private cubicles and locking cabinets, and each grouping has its own locking door. The space I considered had just two desks, so by renting both spaces I could create a semi-private office. For times when more privacy was required, but a full conference room was an overkill – like when making a phone call – each area had clusters of phone booths with plenty of room to set up and work inside.  While I’m certainly not a decorator, the space also looked great.

Such an arrangement is certainly different from having a private office, but with a bit of adjustment, it could be quite suitable for a fledgling practice. Also, since co-working facilities are filled with entrepreneurs, the community could serve as a valuable source of business for the right firm.

Also, if you’re looking for space, don’t overlook other law firms who may also have additional space that they are willing to rent or trade. While Carolyn points out an expensive craigslist rental, I’ve known several lawyers who are unable to take on a new employee be more than happy to share space with someone else at a reasonable rate. There can be pitfalls in such an arrangement if the attorneys are not compatible, and it is important to make certain clients are not confused about the relationship, but it can also develop into a relationship where each lawyer helps strengthen and support the others.

Affordable office space exists.  Personally, I think the benefits of having an office – even one that might be somewhat nontraditional – outweigh the costs.

April 10, 2013

Handling Hot Docs

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.

Burning Document image courtesy of Scott Miles Love.
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