Simplifying Cost Savings in E-Discovery PROVEN, EFFECTIVE STRATEGIES FOR RESOURCE ALLOCATION IN DOCUMENT REVIEW

Transcription

1 Simplifying Cost Savings in E-Discovery PROVEN, EFFECTIVE STRATEGIES FOR RESOURCE ALLOCATION IN DOCUMENT REVIEW

2 Simplifying Cost Savings in E-Discovery PROVEN, EFFECTIVE STRATEGIES FOR RESOURCE ALLOCATION IN DOCUMENT REVIEW BY PETER OSTREGA The e-discovery and managed document review market has expanded to what some experts estimate is a $2 billion industry as of the end of As this industry has matured, one benefit seen by the end users of these services is the substantial variety of offered technology and solutions. In what once was a crowded market with hundreds of small- and medium-sized service providers, talent, resources, and ideas have consolidated across a number of well-resourced and reputable service providers and consulting firms. Although the race amongst these e-discovery titans is toward a silver bullet technology solution to solve all e-discovery cost problems (à la predictive coding), along the way many of these companies have developed and deployed proven workflow management processes on thousands of matters that lead to real cost savings through organization. The process of managing a large-scale discovery effort can be daunting to even the most experienced lawyer or legal project manager. There is often a tendency to try and force all collected documents into a single linear workflow because it is easy to whiteboard, explain, and manage, and because it is really the way things have always been done. In the 21st century, one of our most expensive indulgences is convenience. Think about a supermarket: when you walk in the door there is likely a convenience area with prepared foods, pre-cut vegetables, etc. for a quick grab and go shopping trip. The ability to buy all of our favorite items this way is very appealing even though we would certainly save money if we sniffed out the best deal for each item on our shopping list. Given the pressure on corporations and law firms to control discovery costs, shouldn t we be thinking about getting the best value we can even if that takes a little extra effort? The key to generating meaningful and likely hidden e-discovery cost savings immediately is matching the right resource to the right task. Doing the right work with the right resources When businesses look to generate efficiency in a service or business process, they examine each component of the service to be performed and assign tasks accordingly. For example, a chain of successful restaurants may have begun with the head chef designing and perhaps even preparing every dish on the menu, but as the business grows, more diners are served and additional locations are opened, the chef will hire assistant sous chefs to prepare the raw ingredients and see through the delivery of his vision. Although the restaurants want the chef s personal touch on each dish, his time is best spent developing new dishes and sourcing the ingredients. Similarly, the head chef is probably not best positioned to run the front of the house. Business managers and restaurant managers would likely be hired to allow the chef to focus on what he does best and what gives the restaurant its lifeblood, the food. Corporate law departments are now using these same business principles. The credo many corporate legal departments are being asked to live these days is do more with less, but the legal departments that are getting it right are actually doing the right things with less. They identify the work that needs to be done, prioritize it according to its value or risk, and then assign it to the right level resources within and outside the organization. For example, many companies have streamlined their contract management process. Work on commodity agreements that can be based on templates might be overseen primarily by paralegals or contract administrators, with attorneys becoming involved in the event of a proposed deviation from established terms or a proposal exceeding pre-determined dollar limits. 1 S. Adrogué and C. Baker, The Evolution and Explosion of E-Discovery Will Continue in 2012, Texas Lawyer (Feb. 6,2012), available at huronconsultinggroup.com

3 In-house lawyers might take the lead in dealing with agreements with more complex issues or in periodic review and revision of standard templates, while outside counsel might be required for certain agreements. The e-discovery process With that lesson in mind, let s think about e-discovery. Although the e-discovery playing field continues to expand in terms of where data is stored (e.g., smart phones, the cloud) and what form the data takes (e.g., video, voic ), the current e-discovery process is largely defined. In its current form, the workflow generally includes the collection of relevant data and the processing of the data by software that is able to search for and remove irrelevant information such as duplicative documents, irrelevant file types, and items that fall outside the relevant date range. Documents that are deemed relevant are hosted in an online document review tool that allows attorneys to access and review them, identify privileged information, and select those items that should be produced. Review is the most costly part of the e-discovery process: a recent report estimates that 73% of the cost is review for relevance, responsiveness, and privilege. 2 It is therefore no surprise that the dialogue in the e-discovery market is focused on document review as the best opportunity for cost savings, with current emphasis on automated review and predictive coding. Although these concepts are loosely defined, their basic goal is to reduce the level of human document review in order to generate cost savings. The ultimate role of this and other developing technologies remains to be seen. In the meantime, however, law firms and corporations can take simple steps to significantly optimize their document review processes and generate meaningful cost savings by matching the right resource to the right task. You may be asking yourself, what does this mean in practice? The first step is to look at your current process and determine if you are forcing it to be linear. If your document reviews are taking place in a major U.S. market where your outside counsel is based, even if they are being done by contract attorneys, it is likely there are significant cost savings to be gained. Consider secondary markets Although the majority of legal talent aggregates at large firms in major markets, there are a substantial number of well-trained lawyers in smaller markets where the workforce out-numbers the job supply. In these smaller legal markets talented document review professionals are available at a fraction of the cost as the same level resource in major markets such as New York City or Washington, D.C. Taking advantage of these cost savings will likely require engaging a service provider with operations in that geography or looking to one of the smaller satellite offices of a major law firm to host the contract attorneys. The first response to the mere suggestion of this kind of workflow adjustment by attorneys who have become accustomed to a more linear process is often that the contract attorneys need to be housed in the same building as the legal team so the lawyers can interact with the contractors. Although there is undeniably an element of collaboration that occurs only when people can interact face-to-face, the simple truth is that these days a material amount of our client and co-worker interaction is virtual. Engagement teams are often split across offices, conference calls are the norm, and video conferencing and virtual meetings are becoming more and more popular. In addition, the e-discovery market has developed and deployed sophisticated tools for managing document review. The online document review softwares that are often used to host documents for review provide detailed reporting on how quickly reviewers are coding, what issues they are finding most frequently, how their review speed and accuracy compares against other reviewers, and other clearly defined metrics that facilitate managing document review from afar. These kinds of objective metrics can be far more effective than walking around the room making sure everyone is working. The key to ensuring a successful satellite review is to make sure the service provider has well-documented and consistent workflow procedures for monitoring review on site and performing quality control. Equally important is ensuring that the review location and client data are secure. The service provider should have a document review facility that is customized for the task, with secure workstations that limit the users ability to remove data from them in any way including accessing the internet outside of the review platform. 2 N. Pace and L. Zakaras, Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery (RAND Institute for Civil Justice 2012).

4 These steps will help mitigate any risks associated with taking a document review offsite and can result in a substantially lower cost review than a major market approach. Taking it a step further Moving e-discovery review to a secondary market is a good start down the path toward meaningful cost savings; however, it is not the single solution, but rather a tool in the toolbox. The basis for this discussion was creating cost savings by matching the right resource to the right task. Let s take a look at a more complex example that underscores the advantages of well-thought resource matching. Let s say your client is preparing to comply with a discovery request in a litigation matter that involves a large number of custodians (100+) and has a significant foreign language component because of the client s locations and/or the underlying dispute. 3 The easy and more linear way to manage this project would be to bring in a team of bilingual contract attorneys to review both English and foreign language documents, working out of the law firm s offices. Foreign language documents deemed relevant for production would be translated for further review and analysis by the legal team and a final subset of documents would be selected for production. This easy solution is also likely the most costly option. Now, let s consider some strategies and decision points for potential resource matching. A good first step is to take a look at the custodians in question and get some context on each one s relevance. There are likely custodians who are a higher priority and have custody of more relevant and confidential information, such as C-suite executives and key business leaders. There is also likely a middle tier that contains a majority of the collection and a lower tier of custodians who are less likely to have relevant information but are simply employed by the company departments involved in the litigation. Some of these custodians likely have foreign language documents and some do not. Given this range of document sources, it makes sense from a cost savings perspective to consider a more nuanced approach to resource matching, rather than having a single, multi-lingual team review all of these documents. If review of the low priority custodian s documents yielded an average of two responsive documents per every 100 reviewed, for example, why use the same high cost resource as is reviewing custodians yielding 50 responsive documents per every 100? Consider developing a workflow through which you assign low priority document review to a lower cost resource, either in a secondary market with lower contract attorney labor rates or even offshore, cutting costs even more significantly. If the decision is made to use an offshore service provider, it is important to make sure they employ the same quality control and assurance processes and data security measures as are used in U.S.-based review facilities. You may wish to have the middle tier document population reviewed in a secondary market, while keeping the high priority documents for review in a location near outside counsel. Since the law firm will need foreign language resources, it may make sense to retain a small group of bilingual contract attorneys who can review high priority documents as well as assist the legal team with foreign language needs. The legal team may also want to consider simplifying the review protocol for documents from low priority and middle tier custodians. Rather than reviewing each document for its relevance to a complicated list of document categories, perhaps reviewers of low and middle tier documents could be asked to make more basic decisions, grouping the documents into broad buckets for secondary review and validation by the team reviewing high priority documents. Since the high priority team presumably sees considerably more responsive documents than the middle and low priority teams, they could more quickly code the documents being pushed up from the two lower work streams. Finally, a separate, dedicated foreign language team could review all low and middle priority foreign language documents. In an effort to minimize translation costs, perhaps a simple summary workflow could be adopted where the contract attorney annotates why they found the foreign language document to be relevant, and then the high priority team validates that recommendation and further codes the document, thus making sure only documents deemed relevant by the high priority review team are sent for expensive translation (typically in the range of 25 cents per word). 3 This article does not address issues specifically related to cross-border discovery or related data privacy issues huronconsultinggroup.com

5 Let s review the resource allocation workflows just described. - High Priority Custodians/English & Foreign Language Documents Reviewed by law firm-based bilingual team. - Middle Priority Custodians/English Language Documents Reviewed by secondary market contract attorney team with simplified review protocol. Responsive documents are pushed up to high priority team for further coding and analysis. - Low Priority Custodians/English Language Documents Reviewed by offshore contract attorney team with simplified review protocol. Responsive documents are pushed up to high priority team for further coding and analysis. - Middle & Low Priority Custodians/Foreign Language Documents Reviewed by dedicated foreign language review team. Simple summary annotations are created for responsive documents for further coding and validation by high priority team. The example discussed above is a large, complex matter, but the same principles of right-sourcing can be applied to any matter. The legal team may choose to handle the review process for a given matter based on the value of the entire matter, or may opt to divide and/or outsource that work based on its relative priority or the complexity of the required tasks. The bottom line is that for every e-discovery project where cost management is critically important, the inhouse legal team and outside counsel should work with the e-discovery service provider to develop workflows that properly allocate review resources. There is no one-size-fits-all approach. However, in any review process there will be opportunities to lower costs through resource allocation. The maturity of the e-discovery market, combined with the availability of experts in review workflow development, make this a fruitful path to meaningful cost savings. As you can see, the idea is to have the proper resources performing the kind of review that justifies their price tag. Although this kind of multiple review stream workflow increases the complexity of managing this project, the good news is that because of the maturity of the e-discovery market, there are a number of service providers that can deliver all of these work streams and have significant experience delivering exactly this kind of process. Huron Legal provides advisory and business services to assist law departments and law firms to enhance organizational effectiveness and reduce legal spend. Huron Legal advises on and implements strategy, organizational design and development, outside counsel management, operational efficiency, and discovery solutions, and provides services relating to the management of matters, contracts, documents, records, digital evidence and e-discovery Huron Consulting Group Inc. All Rights Reserved. Huron is a management consulting firm and not a CPA firm, and does not provide attest services, audits, or other engagements in accordance with the AICPA's Statements on Auditing Standards. Huron is not a law firm; it does not offer, and is not authorized to provide, legal advice or counseling in any jurisdiction.