E-discovery is the most expensive part of the litigation process, and most of that cost involves paying lawyers who review documents. While we may hear a lot about so-called “predictive coding”— the ability to train computers to easily find the right documents—at least for now, humans still make most determinations as to what documents are responsive, privileged, hot or simply unimportant.
Whether they are directly managing the process or using an outside law firm, inside counsel should understand and be involved in the strategic decision process concerning the document review, as these decisions have a direct bearing on both cost and risk. Here are some things to consider:
1. Select the right review team.
Should inside counsel or associates from the law firm handling the litigation do the review, or can they contract out this work? Company lawyers may not bill by the hour, but there is certainly a cost to keeping the work in-house, including that it takes employees away from their regular jobs. If the case involves specialized documents relating to a complicated patent dispute, for example, it may be cost-effective for associates at an outside law firm, who regularly work in that field, to do the review. But in many cases, at least the initial document review can and should be done by contract lawyers.
There are many service providers who can supply good lawyers specializing in document review at a fraction of the price of most inside employees or law-firm associates. The cost of using a contract lawyer might be in the range of $40 to $50 per hour, versus $350 per hour or more for the law firm associates. You pick the lawyers you need to review documents, and the service provider is their employer. Generally, lawyers from the firm handling the litigation will still be involved in training and overseeing the contract lawyers.
A good contract lawyer provider should be able to provide many resumes of people they have worked with before. In reviewing these resumes, consider the normal hiring factors. These include past employment (how much experience they have reviewing documents), potential conflicts, bar admissions, areas of expertise and any needed language ability. When negotiating with the providers, understand that a number of variables can reduce or increase the cost. Office space and computers for the reviewers are often provided, but can be excluded with a cost reduction. Another important issue is whether the contract lawyers are actually qualified to practice in the relevant state. In some cases, with adequate supervision, lawyers in India may be able to do the work, but it is often best to hire contract lawyers who are able to practice in the state where the action is pending.
2. Train them well.
Training contract lawyers, again, is often handled by the outside law firm managing the litigation. They should carefully develop a presentation about the nature of the case, the key players (including lawyers for all sides), problem areas, and other critical legal and factual issues, as well as a lesson on how the review tool itself operates.
Trainers should give a hard copy of the presentation to the reviewers with other important materials that may include: the pleadings (complaint and answer), the relevant discovery requests, any protective orders, chronologies, lists of attorney/law firm names for privilege assessment and anything else handy for the reviewer to have while clicking through page after page of data. Contract lawyers are bound to the rules of ethics and confidentiality that bind all lawyers, and to do their job they will need to know all aspects of the case, good and bad.
Usually the training process will be an ongoing one. The first day, all the new contract lawyers take a class together, and as attorneys come and go during the review process, additional training sessions will take place as needed.
3. Create an open process designed to facilitate information sharing.
People may ask if they can perform the document review online from home or another office. Usually the answer to that question should be “no.” For security reasons, permitting access to the hosting system only from designated terminals—not from anywhere on the Internet—is generally the best practice. Moreover, having the document reviewers work together from a shared space increases productivity and accuracy. They can ask questions as they come up and supervisors can give the answers to all reviewers at once.
4. Use strict quality control/quality assurance (QC/QA) procedures.
The goal in any document review is perfection both in identifying and coding documents. While perfection may be only aspirational in practice, a well-documented QC/QA system is critical both to further that goal and defend against any shortcomings.
The quality-control process often involves a re-review of a defined series of documents previously reviewed by a given contract lawyer, to ensure that person is analyzing and coding the documents correctly. Usually the document hosting software makes this, like tracking reviewer productivity, easy to do. Often many in the review team will make similar mistakes with regard to similar document types, and these issues can then be brought to their attention.
If the problem is with only one reviewer, however, and coaching does not resolve it quickly, that person should be replaced immediately. Contract lawyer service providers understand this and know how to seamlessly change out unsuitable lawyers. No one likes to have to let someone go, but the cost and importance of document reviews simply prohibit coddling the ineffective.