July 15, 2025
Ten Tips to Ensuring a Smooth Document Discovery Project
By Ian D. McCauley (Bayard, P.A., a Meritas Member Firm)
Published by the Association of Corporate Counsel
Every business, no matter how small, will eventually find itself the target of a request for production of documents, subpoena duces tecum, a government investigation, or some other type of demand.
Published by the Association of Corporate Counsel
Every business, no matter how small, will eventually find itself the target of a request for production of documents, subpoena duces tecum, a government investigation, or some other type of demand.
Requests of this sort can become very expensive, particularly because electronically stored information (“ESI”) is usually requested.
Effective communication between employees, outside counsel and discovery vendors will ensure cost overruns are avoided when responding to a document request while also ensuring that value is extracted from the project itself.
Employees should understand whether they can use personal devices for business. They should also understand how the length of time emails are typically stored on company servers, whether text or instant messaging applications are allowed, and the consequences of using various technologies.
A rudimentary understanding of the discovery process is also helpful. Educated employees lead to more effective document collection strategies. Ensure employees understand the consequences of how they communicate and store data.
Employees should also be coached on how best to provide relevant information to counsel, as they may assist in the defense or prosecution of the case and have knowledge that will assist in a more streamlined discovery project.
At the start of most discovery projects a litigation hold will be issued. A litigation hold ensures that employees who may have knowledge or documents relevant to the request are apprised of their preservation obligations.
This is a good opportunity to get employees comfortable with the idea that their documents may be collected, that they may be questioned by counsel, and that their time may be encroached upon.
It is also a good time to discuss privacy concerns regarding any personal information that may be intermixed with company records.
Other considerations include whether there are stringent rules regarding collection of documents and how the court views non-parties versus parties when assessing burdens and responsibilities.
Answering these questions will impact when and which vendors are hired, how document collection strategies are developed, and how analysis of documents will proceed.
These interviews also can help identify pain points early on, which may include usage of devices that are not under control of the company, forms of communications that are not approved by the business, potentially relevant data that is no longer in existence, and discussion of facts which may impact the written responses or the case itself.
Written responses to document requests are typically due 30 days after service, while subpoena responses are due within 14 days.
This means that, absent an extension, counsel will have little time to investigate the relevant documents which are in existence prior to responding.
It is important that counsel not promise to provide things which may not exist, while leaving flexibility to amend its responses later in the matter. Facts are often not uncovered until after data harvesting is complete and document review has begun.
Vendors should be asked whether they offer email threading, clustering, technology assisted review (“TAR”), and Generative AI (“GenAI”) for document review. Further, the vendor should demonstrate that they have expertise in deploying these tools and advising on their usage.
Finally, a timid document vendor can lead to costly technical miscues by counsel that cause work to be redone.
Ensure that the discovery vendor is confident and empowered to push back on counsel when they are heading down a less than optimal technical road.
Outside counsel should understand search and review methodologies beyond the use of simple old school search terms and linear document review.
Outside counsel should understand the costs and benefits of TAR, understand document review prioritization (reviewing documents by thread, in chronological order, by specific key words, etc.), and have at least a passing familiarity with leveraging GenAI in document review.
Not all of these techniques may be used in the review, but they should always be considered as an option.
These techniques are not a panacea to fully alleviate the costs involved in document review, however.
The usage of GenAI is expensive, as is TAR, and many cases do not rise to the level where techniques beyond traditional search terms and linear review are necessary. Even in the smallest of matters, however, TAR workflows can be deployed to identify the most important records early in the case while also checking first level coding.
There are a variety of factors which determine whether contract or law firm attorneys will review the documents. These factors include the amount of data to be reviewed, the complexity of the issues involved, and the scope of privilege and confidentiality analysis.
It is important that outside counsel not default to using their own attorneys for first level review, though they may ultimately make the decision to do so.
Regardless, law firm attorneys will need to be involved in the management of contract attorneys as well as the analysis of documents involving complex legal and key issues.
Outside counsel’s most important role may be in familiarizing itself with the key documents and drafting the review protocol.
There may be no more important internal document than the review protocol.
The protocol should include a robust description of the matter, the procedural posture, the scope of privilege and known attorneys and law firms, exemplary documents, and how documents should be coded.
An effective document review protocol should allow an attorney to begin coding records with no other extrinsic material.
In litigation, corporate counsel and employees with knowledge of the underlying facts leading to the request often may need to view and comment on documents received from the other side.
An overly restrictive confidentiality order may cause inefficiencies by restricting employees’ ability to access these documents. To that end, the confidentiality agreement should be negotiated to ensure that the documents being received are accessible by appropriate individuals.
Businesses have a vested interest in protecting documents of a highly sensitive nature. Corporate counsel often encourage outside counsel to agree to confidentiality agreements that have either an “attorneys’ eyes only” or “outside counsel eyes” only designation.
While this can be useful in protecting appropriate information, it can lead to increased costs in the document review, as it is one additional step of analysis that is required.
Further, parties can often abuse this additional layer of confidentiality by over designating documents, thus leading to costly court battles. If a highly confidential provision is used it should be appropriately defined so that it is used sparingly.
The confidentiality agreement should also include a strong claw back provision. Mistakes can and will happen, and strong claw back language will ensure that inadvertently produced privileged documents will be returned by opposing counsel.
Finally, an ESI Protocol between the parties is often recommended. The ESI Protocol covers topics such as how documents are searched, whether full document families are produced, the format of document production, and the scope of any privilege logs to be exchanged.
This is another way to avoid costly discovery disputes that a court does not want to hear and that often does not move the case forward in any way.
The other side will not seek documents that prove a company’s defense or claim, so outside counsel must be mindful to find these documents beyond what they have promised to provide.
Finally, and most importantly, counsel must be mindful of what was ultimately produced in the case.
Discovery obligations are just the start. To effectively prosecute or defend a case, counsel must understand what all parties have produced in the matter, so that the documents may be used effectively at deposition and in briefings.
Conclusion:
No document discovery project will ever be perfect, nor will it be absent of inefficiencies. The above list, however, includes basic considerations that will help guide corporate counsel, outside counsel, and vendors in efficiently running a large-scale document project.
Following these guidelines provides a good base to avoid cost overruns while ensuring the appropriate documents are produced in a usable manner.
Author: Ian D. McCauley (Bayard, P.A., a Meritas Member Firm)
Effective communication between employees, outside counsel and discovery vendors will ensure cost overruns are avoided when responding to a document request while also ensuring that value is extracted from the project itself.
- Litigation Readiness
Employees should understand whether they can use personal devices for business. They should also understand how the length of time emails are typically stored on company servers, whether text or instant messaging applications are allowed, and the consequences of using various technologies.
A rudimentary understanding of the discovery process is also helpful. Educated employees lead to more effective document collection strategies. Ensure employees understand the consequences of how they communicate and store data.
Employees should also be coached on how best to provide relevant information to counsel, as they may assist in the defense or prosecution of the case and have knowledge that will assist in a more streamlined discovery project.
- Issuance of Litigation Hold
At the start of most discovery projects a litigation hold will be issued. A litigation hold ensures that employees who may have knowledge or documents relevant to the request are apprised of their preservation obligations.
This is a good opportunity to get employees comfortable with the idea that their documents may be collected, that they may be questioned by counsel, and that their time may be encroached upon.
It is also a good time to discuss privacy concerns regarding any personal information that may be intermixed with company records.
- Jurisdictional Knowledge
Other considerations include whether there are stringent rules regarding collection of documents and how the court views non-parties versus parties when assessing burdens and responsibilities.
Answering these questions will impact when and which vendors are hired, how document collection strategies are developed, and how analysis of documents will proceed.
- Custodian Interviews
?
These interviews also can help identify pain points early on, which may include usage of devices that are not under control of the company, forms of communications that are not approved by the business, potentially relevant data that is no longer in existence, and discussion of facts which may impact the written responses or the case itself.
- Written Responses
Written responses to document requests are typically due 30 days after service, while subpoena responses are due within 14 days.
This means that, absent an extension, counsel will have little time to investigate the relevant documents which are in existence prior to responding.
It is important that counsel not promise to provide things which may not exist, while leaving flexibility to amend its responses later in the matter. Facts are often not uncovered until after data harvesting is complete and document review has begun.
- Vendor Selection
Vendors should be asked whether they offer email threading, clustering, technology assisted review (“TAR”), and Generative AI (“GenAI”) for document review. Further, the vendor should demonstrate that they have expertise in deploying these tools and advising on their usage.
Finally, a timid document vendor can lead to costly technical miscues by counsel that cause work to be redone.
Ensure that the discovery vendor is confident and empowered to push back on counsel when they are heading down a less than optimal technical road.
- Document Review Approach and Techniques
Outside counsel should understand search and review methodologies beyond the use of simple old school search terms and linear document review.
Outside counsel should understand the costs and benefits of TAR, understand document review prioritization (reviewing documents by thread, in chronological order, by specific key words, etc.), and have at least a passing familiarity with leveraging GenAI in document review.
Not all of these techniques may be used in the review, but they should always be considered as an option.
These techniques are not a panacea to fully alleviate the costs involved in document review, however.
The usage of GenAI is expensive, as is TAR, and many cases do not rise to the level where techniques beyond traditional search terms and linear review are necessary. Even in the smallest of matters, however, TAR workflows can be deployed to identify the most important records early in the case while also checking first level coding.
- Review Responsibilities
There are a variety of factors which determine whether contract or law firm attorneys will review the documents. These factors include the amount of data to be reviewed, the complexity of the issues involved, and the scope of privilege and confidentiality analysis.
It is important that outside counsel not default to using their own attorneys for first level review, though they may ultimately make the decision to do so.
Regardless, law firm attorneys will need to be involved in the management of contract attorneys as well as the analysis of documents involving complex legal and key issues.
Outside counsel’s most important role may be in familiarizing itself with the key documents and drafting the review protocol.
There may be no more important internal document than the review protocol.
The protocol should include a robust description of the matter, the procedural posture, the scope of privilege and known attorneys and law firms, exemplary documents, and how documents should be coded.
An effective document review protocol should allow an attorney to begin coding records with no other extrinsic material.
- Necessary Documents
In litigation, corporate counsel and employees with knowledge of the underlying facts leading to the request often may need to view and comment on documents received from the other side.
An overly restrictive confidentiality order may cause inefficiencies by restricting employees’ ability to access these documents. To that end, the confidentiality agreement should be negotiated to ensure that the documents being received are accessible by appropriate individuals.
Businesses have a vested interest in protecting documents of a highly sensitive nature. Corporate counsel often encourage outside counsel to agree to confidentiality agreements that have either an “attorneys’ eyes only” or “outside counsel eyes” only designation.
While this can be useful in protecting appropriate information, it can lead to increased costs in the document review, as it is one additional step of analysis that is required.
Further, parties can often abuse this additional layer of confidentiality by over designating documents, thus leading to costly court battles. If a highly confidential provision is used it should be appropriately defined so that it is used sparingly.
The confidentiality agreement should also include a strong claw back provision. Mistakes can and will happen, and strong claw back language will ensure that inadvertently produced privileged documents will be returned by opposing counsel.
Finally, an ESI Protocol between the parties is often recommended. The ESI Protocol covers topics such as how documents are searched, whether full document families are produced, the format of document production, and the scope of any privilege logs to be exchanged.
This is another way to avoid costly discovery disputes that a court does not want to hear and that often does not move the case forward in any way.
- Production Utilization
The other side will not seek documents that prove a company’s defense or claim, so outside counsel must be mindful to find these documents beyond what they have promised to provide.
Finally, and most importantly, counsel must be mindful of what was ultimately produced in the case.
Discovery obligations are just the start. To effectively prosecute or defend a case, counsel must understand what all parties have produced in the matter, so that the documents may be used effectively at deposition and in briefings.
Conclusion:
No document discovery project will ever be perfect, nor will it be absent of inefficiencies. The above list, however, includes basic considerations that will help guide corporate counsel, outside counsel, and vendors in efficiently running a large-scale document project.
Following these guidelines provides a good base to avoid cost overruns while ensuring the appropriate documents are produced in a usable manner.
Author: Ian D. McCauley (Bayard, P.A., a Meritas Member Firm)
The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.