Disclosing Novel Document Review Methods

, New York Law Journal


Robert W. Trenchard and Steven Berrent of WilmerHale examine privacy concerns that weigh against disclosure and argue that, in many cases, a combination of statistical sampling, non-waiver and other agreements, and/or in camera review by a judge or special master can help parties strike an appropriate balance between the goals of minimizing discovery disputes and of protecting other legitimate interests.

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What's being said

  • George Socha

    The foundational premise for this article is, "Before the advent of large-scale e-discovery, lawyers had no need to disclose how they planned to review documents for responsiveness and privilege. Everyone knew there was only one way to do it. A human being looked at each record." Never was it so, however. In almost every case, there were more documents that one could review for relevance and privilege, than could be reviewed with the time and money available. In the early 1990's, we used to use the term "mythical million." That referred to the situation where a lawyer would go to provider with what was supposed to be a million page or million document case. Generally, there actually was a large number of documents that potentially could be reviewed, although usually not as many as a million. Almost always, by the time the terms of the agreement were hammer out, there were only about 20,000 to 50,000 documents to be handled. In its essence, this was a culling process, with the culling based on broad-brush-stroke criteria, performed because the available resources were not enough to pay for a human to look at every record. The same applied with warehouses of retained records, with documents kept in employees' offices, and so on.

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