Skilled people have always been crucial to an effective document collection and review. That is still true today; however, the necessary skill sets have evolved over time.
Document collection and review in the paper world provides context for understanding the evolution of the skill sets for today’s discovery practitioners. In the paper era, successful document collections and review were logistical in nature. The required skills included the ability to schedule and interview multiple custodians concurrently. Discovery teams collected documents to remove them for copying or scanning and to properly refile them once they were returned to the custodian.
The collection team would slip-sheet the documents to mark every break in the file. File breaks were used to create an index of each document, where it was collected and what box number it was placed in prior to shipment to a vendor. Documents often were Bates stamped by hand, reviewed in paper format, categorized on a paper form and redacted with black marker. While this type of work required skills and discipline, the role of the people that execute the discovery process today is significantly different.
As technology evolved, information was increasingly stored in an electronic format. Fifteen years ago, only five percent of discoverable documents came in an electronic format. By 2006, electronically stored information (ESI) constituted more than 90 percent of all corporate information. (C.C. Holland, “E-Mail Analytics Eases Burden of Discovery,” Law.com, Oct. 3, 2006). The rapid data expansion kicked off an industry dedicated to collecting, processing, reviewing, analyzing and producing ESI in the context of e-discovery and internal investigations. As a result, the process by which data is retrieved, processed and analyzed has shifted. As computers dominate the business space—with e-mail, electronic documents, instant messages, backup tapes, etc. —the size and scale of potentially discoverable data continues to grow.
The 2006 amendments to the Federal Rules of Civil Procedure accelerated the shift from paper to digital review. That evolution gave rise to large numbers of licensed attorneys sitting in document review facilities who painstakingly analyze each electronic document for privilege, relevance and key issues in a hosted database environment. Professionals had to understand how computer systems worked, how to navigate hosted platforms to rapidly cull through hundreds of electronic pages per day looking for the proverbial needle in the rapidly growing haystack. While the skill required to use these new technologies effectively was markedly different from the banker box days, most attorneys could thrive for years in this role by simply having a license, making accurate coding decisions and being able to spend 12 hours a day looking at a computer screen.
Over the last five years, technology-leveraged solutions relying on a synergy between man and machine have developed to cope with data expanding at a rate of 100 percent every 18-24 months. Instead of a legion of attorneys, law firms and corporations are turning to advanced project management and smaller teams of highly skilled workers who have the knowledge to fully utilize the advanced technologies in the market.
Judge Andrew J. Peck’s opinion in Da Silva Moore v. Publicis Groupe, F. Supp. 2d _, No. 11-civ-1279 (ALC) (AJP), 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012) paves the way for increased utilization of advanced technologies to augment or replace traditional models of linear review. This provides reviewers the opportunity to work hand-in-hand with the case team to maximize technology in a document review. Reviewers’ skills need to increase proportionally to the sophistication of the technologies that are increasingly being deployed in order to remain a viable candidate in the post Da Silva Moore world.
The increasing intersection of man and machine heightens the need for knowledge workers in the legal technology and staffing space. Today’s project managers and document reviewers must understand how to use sophisticated databases that rely on a wide spectrum of analytics. Document reviews using analytics and technology require fewer document review attorneys with a higher efficacy level. Project managers and smaller teams of high-value document reviews must be technically expert, legally astute and statistically savvy.
They also must do more. Coding and reviewing documents is just one facet of their role. As key members of the litigation team, their job is to stream information to trial counsel early in the case to assist with basic fact development and liability assessment. Technology continues to evolve and the expectations of practitioners in the space will increase. As a result the role and impact of the knowledge worker likewise shifts. ESI initially commoditized the document review attorney, but technology is reintegrating them within the entire discovery process and returning discovery to its role of fact-driven case development.
In our next segment we will discuss the value that professionally trained project managers bring to the discovery process.