A Lyric on Document Review or Why We Blog

January 3, 2005 | 15 comments
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Why do we blog? What is it that makes us spend so much time informing an innocent unsuspecting public of our views on a myriad of random issues?

Initially I was drawn to blogging for the same reasons that Jim Faulconer and Wilfried Decco were drawn to blogging: Paparazzi. It was the lure of fame, easy money, and a chance to live it up in the fast lane that brought me into cyberspace. If only we could figure out a way of driving more traffic to Times & Seasons, I knew – just knew – that power, wealth, the adulation of millions would be mine for the taking.

I have to admit, however, what keeps me blogging is document review. For those uninitiated in the ways of modern litigation, document review is the legal equivalent of pulling weeds or scrubbing the gym floor with a tooth brush or grading freshman English papers. You get the picture. Imagine a conference room with nice chairs, a big table, and perhaps a tasteful credenza. Now imagine that the table, chairs, credenza, and floor are stacked with endless boxes filled with documents: hundreds of thousands of pages of other people’s email, millions of pages of draft contracts, billions and billions and billions of pages of PowerPoint presentations. (Carl Sagan actually worked as a paralegal before making hokey educational shows for PBS.) Your job as a junior attorney is to “review� these documents.

It is important to understand, however, that “reviewing documents� is not actually as glamorous as I have made it sound. For example, imagine that you are doing a privilege review. What this means is that your client, in response to a request by the opposing party, has just copied every scrap of paper that it produced between 1995 and 2000. This has been hauled in by the truck load into the offices of your firm. Before these documents are given to the other side, however, you have to make sure that none of them are covered by the attorney-client privilege. This is important. If you inadvertently give opposing counsel a bunch of privileged documents not only will they know your client’s darkest secrets – like, for example, the fact that the in-house lawyers told the outside lawyers that they too thought that the judge was a fathead – but you will have been deemed to waived the privilege and opposing party will get to read all of the memos in which your client’s lawyers told it that the law did in fact allow it to squish ACME Corp. like the puss-filled zit that it is.

So you have to make sure that you don’t give out any privileged documents. This means that every single document must be examined by a highly trained lawyer. This attorney will then be called upon to make a subtle judgement call about whether or not the email in question really is privileged. The answer to this question will depend on a deep understanding of the law and a careful and painstaking analysis of all of the facts bearing on this judgement. Generally speaking this analysis will consist of determining whether one of the names in the “To:� line of the email belongs to a lawyer. In other words, it is the kind of work that trained monkeys or exceptionally gifted tree squirrels could perform quite nicely. For this you wade through three years of intensive education in the intricacies constitutional law and jurisprudential theorizing while mortgaging your children’s children’s future to the student loan gods.

And this is where blogging comes in. It provides a little window of hope and solace as you wade through yet another draft SEC filing that is not privileged because while it is addressed to outside counsel, your client also cc-ed it to their investment bankers, who are not, alas for them, lawyers. You put the document down, and think, now I get a little reward. I can check Times & Seasons and see if Adam and Kristine have gotten into another spitting match.

All I can say at this point is, “Thanks guys.� It has been one of those days.

15 Responses to A Lyric on Document Review or Why We Blog

  1. Adam Greenwood on January 3, 2005 at 8:24 pm

    In other words, unlike the rest of us, you have motives for blogging that are only somewhat discreditable.

  2. gst on January 3, 2005 at 8:42 pm

    So now they’re called “spitting” matches?

  3. Kristine on January 3, 2005 at 8:49 pm

    No doubt out of respect for my delicate feminine sensibilities, gst. (That and the fact that the female of the species is at a decided disadvantage in the other kind of contest :))

  4. Kaimi on January 3, 2005 at 10:07 pm

    The other fun wrinkle with privilege review (or doc review in general) is that the documents will always come back to bite you in some way that you could never have anticipated, and it will always be your fault.

    Eight months later, after the documents are produced, forgotten (as if they were ever remembered anyway), and you’re in the middle of a brief, you’ll suddenly get a desparate call from co counsel.

    “You produced the documents relating to the Monglian subsidiary?!?”
    “Umm” (trying to remember if you ever even _saw_ any documents relating to the Mongolian subsidiary) “why don’t you fax me a copy of the documents you’re thinking about.”
    “I already faxed them to your senior partner!”
    (Straining to remember)
    “I think there were some documents . . . what did we decide about those . . . ”
    (Secretary cuts in)
    “It’s the partner on your other line, and he doesn’t sound happy.”

  5. lyle on January 3, 2005 at 11:08 pm

    Spot on Nate. I’ve looked at 100s of boxes doing doc review over the last 3-4 months.

    Kaimi presents the optimistic picture. For those of lesser faith (such as I), here are alternative versions:

    more optimistic:

    What this means is that your client, in response to a request by the opposing party, has just copied every scrap of paper that it produced between 1995 and 2000…that is, except for the ones that would incriminate or paint them in a bad or illegal light.

    less optimistic:
    This has been hauled in by the truck load into the offices of your firm…where you take out all of the juicy documents, regardless of privilege, and then send the requesting party only the innumerable drafts of SEC draft filings that are completely useless to their case.

  6. lyle on January 3, 2005 at 11:14 pm

    most optimistic: and then eventually, perhaps the last day of discovery, or perhaps the day before trial, all of the juicy documens arrive. ah…then one stops blogging because the docs are as hot as the spitting, knitting, or wordsmithing contests.

  7. Rebecca on January 4, 2005 at 2:07 am

    You just so eloquently described my day to day life, only in smaller firms, such as mine, people in the marketing department, which includes only me, get sucked into document review.

    One reason why it is good that seasoned attorneys review docs is so that you don’t have mishaps like ours. During our most recent trial one of the paralegals inadvertently provided opposing counsel with all of our privileged documents rather then the documents they were supposed to provide.

    It could always be worse Nate, unless of course your blogging.

  8. J. Stout on January 4, 2005 at 4:09 am

    So people asked me why I didn’t become a doctor or a lawyer like the rest of my Skyline High School friends. My answer is simple-if i did, I’d have to do the things doctors and lawyers do all day. (blood and spit and doc review- you all payed a lot of money to be about to do that stuff!?)

    Nate-you’re still brilliant and fun to read!

    Back to teaching college kids how to play racquetball!

    J. Stout-(SHS ’93)

  9. SFW on January 4, 2005 at 8:35 am

    Ah, the joys of being an in-house attorney. Granted, I still dabble in discovery from time to time, but I typically pass as much as I can to outside counsel. Here’s to you.

  10. Kaimi on January 4, 2005 at 11:30 am

    Rebecca,

    I wish that we had a marketing department whose employees I could “borrow” for some doc review. I’m thinking of grabbing some of the people from the mailroom, next time they come by with the mail, and trying to squeeze a half hour of doc review out of them.

  11. Jared on January 5, 2005 at 3:15 pm

    Well Nate at least your docs are on paper. On a big doc review I worked on last year the docs were all scanned into a document management system so I had to stare at a computer screen all day to perform my own careful analysis. I can do that for a while but after a day my eyes were fried.

    However, my review went beyond a mere privilege review. I also got to select whether the document in question was “hot” or “interesting.” Yipee!

    Fortunately for our client there was nothing even remotely interesting; they were totally clean. Unfortunately for the doc review team that made our job very boring.

  12. Jeff on March 3, 2005 at 12:40 pm

    hey nate–kaime–lyle–rebecca–jared,
    can you do me a huge favor? i have an interview on 3/10 for a document review/first review/privilege review/relevance review job (glutton for punishment). i really need the job though. even tho i was a criminal defense lawyer for 15 years, i have no clue about document review in this context (the civil law world).
    i need to know some things to say at the interview to at least give the impression that i’m familiar with this type of work.
    please help me if you can! my email is jcd2216@aol.com. and just think, i’ll be able to share my scintillating doc review stories with you all if i get the job!!
    thanks,
    jeff

  13. Kaimi on March 3, 2005 at 1:07 pm

    Things I might say if I were interviewing for a doc review job, in order to show that I know what’s going on:

    “Is it going to be paper or electronic review?”
    “When do I get the document request and the attorney list?” (Every doc review project has these, so it’s a no-brainer. But it makes you look like a vet.)
    “If I see someone who is clearly an attorney, and whose name isn’t on the list, I’ll make sure to tell someone.” (You’re being helpful. Every attorney list is incomplete — it’s the nature of the beast).
    “I’m happy to work overtime if needed” and “my schedule is very flexible.” (Every project will have sudden spurts).
    “How long is the doc request? If it’s long, is there a ‘cheat sheet’?” (There usually is).
    “Are we supposed to look for hot docs? Are we flagging hot docs? Which subject matters are the important ones?”
    “Can I see the Complaint?” (also, if applicable, the Answer, Motion to Dismiss, Class Cert Motion, etc). (This indicates that you’re interested in the underlying litigation and you’re not just going to be a mindless drone).
    “Are we doing any bucketizing?”
    “Is there a protective order?” (there probably will be if it’s a production of any size).
    “How long do you expect the project to go?”

    And, very important –
    “What exactly are the guidelines for privileged documents?” This is important because everyone handles privilege differently. If it’s a delicate matter, or if the firm is really covering itself, they may give doc reviewers very little authority on priv docs. For example, you see an attorney name and you flag it, no matter what, and a firm attorney will make all final priv calls. On the other hand, if it’s not sensitive, if the firm doesn’t care, and/or if the production needs to go out fast, they may have doc reviewers make final priv calls. There are in-between permutations too, such as there may be a re-review of priv docs by other doc reviewers. And if you _are_ making final priv calls, you should find out how these are being handled. Privilege has a _lot_ of gray areas — material that went to co-counsel, e-mails CC-ed to counsel, drafts, stuff that went to third party agents — and you’ll want a sense of how the attorneys have decided to handle those, whether it’s conservative (only call it priv if it’s 100% sure to hold up), aggressive (call it priv if there’s any colorable argument for doing so) or in between.

    Privilege calls are one of the most important things on a production and if you blow a priv call, that _is_ something that may get you fired.

    Good luck!

  14. Kaimi on March 3, 2005 at 1:17 pm

    Oh, a few other things –

    -Find out how relevance calls are being handled as well (conservative, aggressive, in-between).
    -Find out how redactions are being handled.

    And don’t disagree with a firm attorney on the handling of these. They may have decided to be more conservative or more aggressive than you think is right, but that’s their call. If the associate supervising the project says “treat all of X-category documents as privileged” or “treat Y category as responsive” you do that.

    If he asks “do you think X should be privileged” then you’re free to speak up, of course. But once the determination has been made, all of the doc reviewers have to stick to it — you don’t want a production that’s inconsistent because different people were making different calls on the same document.

  15. Jeff on March 4, 2005 at 2:15 pm

    Kaimi–

    That was incredibly nice of you to have taken the time to help me out. I will definitely use your input at the interview.
    And now I’m pushing my luck.
    Can you tell me what you mean by:

    —’cheat sheets’ for long doc request
    —’hot docs’ –are these docs that relate directly to main issue(s) in the case?
    —’bucketizing’

    Again, thanks so much for your help.