Here’s How Review for Investigation Differs from Review for Litigation
While the recently concluded Tokyo Olympics were significantly impacted by the COVID-19 pandemic in terms of in-person attendance, the events themselves were (as always) still compelling. Two of the Olympic track and field events that are always interesting are the 100-meter dash and the marathon, which is 26.2 miles. The 100-meter dash literally 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 in terms of the workflows used to accomplish them. Two of them – investigations and litigation – are typically as different as the 100-meter dash and the marathon in terms of how they’re conducted and it’s important to understand those differences when it comes to planning for each of these use cases.
Review for Investigation
Investigations are the 100-meter dash in this analogy – they are conducted quickly to determine the “who, what, where and when” of the issue to determine whether there’s a problem and, if so, the extent of that problem. Investigations typically involve a small team consisting of experts that are most knowledgeable about the issue being investigated, as well as those most knowledgeable about the technology being used. The team 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 is paramount.
The investigation is often defined by the concept of an immersive dive into the data, with the help of advanced technology to magnify the work of the investigator. This dive is often guided by 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 almost be described as “early data assessment on steroids” and the time frame for developing the knowledge needed to act on the results of the investigation 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 (especially larger litigation cases), is more like the marathon. It’s planned, methodical and involves management of a team of reviewers, which is why the term “managed review” is often used to describe that service offered by review providers, as they provide the knowledge and project management expertise to manage a complex review. The managed review process is highly documented and coordinated to support defensibility in case your discovery process is called into question by opposing counsel and must be defended in court.
There are often multiple workflows associated with managed review, including responsiveness review, privilege review, issue coding and potential QC reviews of any of those review activities. The focus is broader, typically encompassing 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 issues involved in it. Leveraging technology here is focused on making the reviews as efficient and proportional 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!” Obviously, that never happens in the Olympics, but it would make for a very interesting result!
The result from many investigation reviews is a preparation for anticipated litigation and the managed review needed to support that. The investigation and work to understand the facts of the case can lead to the anticipation of document requests for litigation and even identification of initial batches for litigation managed review. Often, the result of the investigation is the identification of the top 5% of potentially responsive documents that will help in prioritizing the remaining 95% for litigation review. Conversely, “eyes on” review from a managed review team can help narrow the scope of the corpus of documents to be considered during an investigation.
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 and both can be applied over the life cycle of a case. The “sprint” of an investigation review can often turn into the “marathon” of managed review for litigation in eDiscovery. Unlike these two compelling Olympic events, you don’t need the correct running shoes to support them, but you do need an expert team that has experience in supporting 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.