While different cases require different methods, here are some suggestions on how to approach these tasks.

1. Production Method. Documents to be produced in complex litigation usually are located in warehouses and offices around the country. There are a number of ways by which those documents can be produced, ranging from allowing an on-site review of originals, to producing copies of all relevant documents, to producing the documents in electronic form. Each offers a different mix of logistical difficulties and cost.

   We have found the best approach is to scan the relevant documents where they are located, link the documents to a database, and make the images available to opposing counsel in electronic or paper form. This approach offers both logistical and cost advantages over the more traditional methods of production.

   First, the exercise of culling through the boxes to identify relevant documents has to be done only once. If relevant documents were produced as originals and then returned to their warehouses, the exercise would have to be repeated in any subsequent spin-off litigation. Given the magnitude of the task of identifying relevant documents, this process should only be done once.

   Scanning, rather than copying documents, costs less over the long run. The initial scan may cost a little more than a photocopy, but that cost is incurred only once. Once the image is created, subsequent copies of that image can be generated for little or no cost. By contrast, each new photocopy costs the same as the original. And, the subsequent generations of copies begin to deteriorate in quality, a problem not experienced with scanned images.

   The process of screening for privilege and creating privilege logs is easier with scanned images than with copies. By searching the database for specific authors or recipients, for particular document types, or for particular buzz words in the descriptive section, it is possible to identify those documents which may be privileged and would require further privilege review. Because the documents are imaged, the additional privilege review could be conducted directly from the database. This is far easier than trying to locate and review the paper copies. And, once the database is complete, a privilege log can be created from the database.

2. Assess the Current Status of the Documents. Once we’ve decided how the documents will be assembled for production, the next task is to identify the location of relevant material. As we discussed, these documents are often located in document warehouses around the country. It will be necessary to identify what offices around the country may contain relevant documents, and a plan should be developed by which those materials are reviewed and relevant documents are imaged.

   It is important to carefully document how the search for relevant documents is conducted, and the process by which those documents are screened for privilege and gathered together for production. Given the large volume of material to be reviewed and produced in complex litigation, there is little doubt that opposing counsel will challenge the thoroughness of any search, and the adequacy of its production. A detailed description of precisely what was done to find and collect relevant documents will go a long way in meeting any such challenge.

3. Scanning and Coding Relevant Documents. Once the location of relevant documents has been identified and catalogued, a plan is developed for going through the boxes to identify, scan, and code relevant documents. We recommend that the first two steps in this process take place on site, in order to minimize the need to move documents from location to location. This work is conducted by a mixture of legal professionals, primarily paralegals and junior attorneys, who identify relevant materials, and temporary staff to perform the scanning work.

   Coding work can be done off-site, again using a mixture of legal and non-legal staff. (Depending on the quantity of documents, we may recommend in certain cases hiring an off-shore coding shop.) The design of each database will require considerable thought. The key is to fully think through the anticipated uses of the database (e.g., in addition to assisting with the production of documents, the database should be designed to help with the pretrial motion process, the discovery process, and the preparation for and conduct of trial). Adequate training of the personnel used to perform the preliminary data input is critical.

4. The Database and Imaging System. In complex litigation, you need a database and imaging system capable of handling millions of pages of documents. We recommend using Microsoft’s SQL database software for the database. This product is designed to hold large volumes of data and to make that data accessible to multiple users. Because it is a Microsoft product, it is well-supported now and will continued to be supported in the future.

   While many of our cases use Microsoft Access for the database, we have developed a custom front end which we use with Microsoft’s SQL database as well. To give an idea of how it works,here are a couple of screen shots from a sample database.

   Here is a typical form view of the database:

   
   A Form View of the Database

   Using Active X controls, we have modified the database so that we can use a specific list of authors and issues. This provides consistency, which is crucial for large databases.

   
   Using the Author/Witness Lookup Controls

   We often use the datasheet view for document analysis. The datasheet view provides selected information about the documents in a columnar format. Here is a sample view.

   
   The Datasheet View

   The database is designed to be user-friendly so that attorneys and legal assistants can access document information without the need of a computer technician.

   We use Adobe Acrobat for image capture and viewing. Although Acrobat is a proprietary format, it has become a standard on the internet for presenting formatted, rich-text documents. And, there are tools available for use with Acrobat which would allow full annotation and highlighting of all images.

   More important for our purposes, Acrobat allows us to capture the text from the images through OCR technology and to make the images key-word searchable. The ability to search for key words in one or literally millions of case documents can be extremely valuable and cost-effective. Unlike other imaging and OCR systems, the “hits” appear on the image itself, allowing the searcher to see immediately whether the document is relevant.

   This process is also valuable for scanning large documents. With Acrobat you can find relevant parts of the documents through a word search, like you might with a word-processing document.

   You can see this here.

   
   Acrobat's Image Search Feature

5. Screening for Privilege. A properly-designed database with linked images can substantially reduce the complexity of screening for privilege and creating a privilege log. Perhaps the most difficult part of the task is to generate a comprehensive list of all legal personnel, both in-house and outside counsel, who may have generated privileged materials that may be located in company documents. The database can then be searched, and any documents with any of the names of legal personnel can be segregated for additional review. Likewise, the description of the document can be searched for buzz words which might indicate the possibility of privilege.

   Our database includes a checkbox to indicate whether a document, such as handwritten notes from files in the legal department, should be reviewed further to determine whether a privilege may apply. Depending on the sophistication and training of the personnel inputting the initial data into the database, much of the identification of privileged documents can be performed at that stage. Once the privilege screening is complete, the database can be used to generate a privilege log.

6. Assembling Documents for Production. After the privilege review is complete, all non-privileged documents can be made available for review by opposing counsel. This can be done in a number of ways. Following the traditional approach, responsive documents could be printed and made available for review by opposing counsel. In the alternative, we could provide the documents on a CD-ROM. Yet another advantage of the database would be the ability to create a record of whether and when a particular document was produced to opposing counsel.