While the COVID-19 pandemic significantly impacted the recently concluded Tokyo Olympics in terms of in-person attendance, the events themselves were (as always) still compelling. Two of the Olympic track and field events always interesting are the 100-meter dash and the marathon, which is 26.2 miles. The 100-meter dash takes less than 10 seconds to decide a winner, while the marathon takes over two hours. What a difference!
Review for eDiscovery supports several use cases, which are also quite different regarding the workflows used to accomplish them. Two of them – investigations and litigation – are typically as diverse as the 100-meter dash and the marathon, and it’s essential to understand those differences when it comes to planning for each use case.
Review for Investigation
Investigations are the 100-meter dash – we use them to determine the “who, what, where, and when” of the issue. We use investigations to determine whether there’s a problem and, if so, the extent of that problem. Investigations typically involve a small team of experts most knowledgeable about the issue and accompanying technology. The group can be as small as one or two people conducting the investigation review in many cases, and the ability and expertise to leverage technology to flush out the facts of the investigation quickly are paramount.
The investigation is often defined by an immersive dive into the data, with the help of advanced technology to magnify the investigator’s work. Its primary focus is a summary statement of the activity you’re trying to prove or disprove during the investigation and is typically narrowly focused but open to expansion. Investigation workflows can be described as “early data assessment on steroids.” The time frame for developing the knowledge needed to act on the investigation results can be as quick as one week or less. At this stage, the focus is on fact-finding, not defensibility, as you’re simply looking to discover the facts to identify the next course of action.
Review for Litigation
Review for litigation (significantly larger litigation cases) is more like a marathon. It’s planned, methodical, and involves the management of a team of reviewers, which is why the term “managed review” is often used to describe the service offered by review providers, as they provide the knowledge and project management expertise to manage a complex review. In addition, the managed review process is highly documented and coordinated to support defensibility in case your discovery process is questioned by opposing counsel and must be defended in court.
There are often multiple workflows associated with the managed review, including responsiveness review, privilege review, issue coding, and potential QC reviews of any of those review activities. The focus typically encompasses all potential issues associated with the case. Managed reviews can take several weeks or even months, depending on the size of the case and the scope of the problems involved. Leveraging technology here is focused on doing the reviews as efficiently and proportionally as possible.
Here’s Where the Analogy Breaks Down
While the investigation and litigation review workflows are different, it’s important to note that the investigation workflow can often be a precursor to the litigation workflow. From an Olympics analogy standpoint, that would be comparable to the race organizers of the 100-meter dash telling the contestants afterward, “Great job! Only 26.1 more miles to go!” That never happens in the Olympics, but it would create an exciting result!
The investigation and work to understand the facts of the case can lead to the anticipation of document requests for litigation and even the identification of initial batches for litigation-managed review. Often, the investigation identifies the top 5% of potentially responsive documents that will help prioritize the remaining 95% for litigation review. Conversely, an “eyes on” review from a managed review team can help narrow the scope of the corpus of documents to include during an investigation.
Conclusion
Reviews conducted to support investigation are typically quite different from managed reviews to support litigation in terms of time frame, focus, and goals. But the two aren’t mutually exclusive. The “sprint” of an investigation review can often turn into the “marathon” of managed review for litigation in eDiscovery. Unlike these two exciting Olympic events, you don’t need the correct running shoes to support them. Still, you do need an expert team with experience in helping both workflows, with the knowledge and flexibility to seamlessly move from one to the other based on the needs of the case. Happy running!
For more information about Sandline’s Managed Review services, click here.
