Efficient Document Review in Bankruptcy Litigation | Part II
As discussed in Part I of this blog series (Efficient Document Review in Bankruptcy Litigation | Part I), controlling costs is paramount while finalizing the discovery process, so it is efficient and therefore advantageous for the litigant seeking payment.
Achieving cost-efficiency in bankruptcy document review and production
Cost-efficiency is achieved by strategic-level decision-making and by the methods and processes used by the document review team. Of course, there is an interconnection because, as illustrated in the example below, decisions made at the strategic level will have impacts on how the document review is conducted and how document reviewers make choices with respect to classifying, coding, culling, processing and producing the documents. At both the strategic and document review level, the emphasis on cost efficiencies will impact choices with respect to document imaging and machine-reading technologies. Use of technology can be quite expensive, and the costs may or may not be justified in any given bankruptcy case. What follows is one example of cost efficiency that can be achieved by strategic decision-making.
Example: Cost efficiency at the strategic level
For cost-efficiency reasons, a strategic-level decision might be made to produce documents “as they are kept in the usual course of business.” This is allowed and is permitted even for electronic-based documents and data. It may sound strange to allow an opposing litigant to have access to the paper files and/or the computer system, but, in bankruptcy proceedings, there are very valid reasons for producing documents in this manner, particularly in liquidations. Significant cost savings can be accomplished by shifting the burden to the document-requesting litigant to review for relevance. Cost savings can also be achieved because the documents do not need to be numbered or coded to correspond to the specific categories of documents requested.
However, an efficient document review must still be undertaken to identify documents to be “culled” and withheld based on privilege, confidentiality, or other grounds. As noted, strategic-level decision-making impacts how the document review team accomplishes its tasks. The document review team must have instructions and must understand their modified responsibilities. For example, document reviewers must be instructed and understand that their focus is NOT on identifying relevance or responsiveness, but rather, on identifying documents that might be withheld. Document reviewers must also be given instructions on tracking and maintaining location data for documents that are to be withheld. Importantly, document reviewers must also understand what they are forbidden from doing. For example, document reviewers cannot move files or supplement meta-data, etc.
Cost efficiency achieved at the document review team level
As noted, the document review team can also create cost efficiencies in the methods used. Essentially, cost efficiency results from establishing an optimal balance between speed and accuracy that minimizes repetitive and redundant reviews of the documents in question. A processing framework accomplishes this balance, and thereby achieves the needed cost efficiency. Specific aspects of the framework include:
- Retaining experienced document reviewers who can properly identify what is responsive to a discovery request, what documents contain attorney-client privileged, work-product or confidential information, etc.
- Providing document reviewers with sufficient and dedicated training relevant to bankruptcy proceedings, in general, and to the specific bankruptcy proceeding at issue
- Equipping reviewers with information on the background and key issues in the case, the strategic decisions made by the litigants, the specific documents being requested, and the preferences expressed on matters such as proper use of confidentiality stamping
- Conducting interviews (where appropriate and possible) with records custodians, computer system and IT personnel, and relevant others
- Creating and maintaining a document review manual
- Assigning review “specialists” for tasks like identifying privileged documents
- Engaging in ongoing quality control over the entire document review process and over individual document reviewers
- Addressing questions and trends as the document review progresses
- Conducting a second-level document review to ensure accuracy of the initial review
- Consulting, as appropriate, with lead attorneys (and, potentially, the trustee)
- Being informed about results from consultation conferences with the production-requesting litigant
- Planning, in advance, for any anticipated secondary or tertiary document reviews based on strategic decisions made by the litigants
For more information, contact Baer Reed. We provide efficient document review services and other legal support solutions to law firms and in-house legal teams around the globe. To learn more, contact us online or call us today at 888-433-1990.
- On May 31, 2022
- Back to post list