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Let's Review

Brett Burney 08-19-2008

Document review is anything but glorious. But it has become a desperate necessity in today's adversarial sphere of civil litigation. It has certainly become a dynamic linchpin in the fracas of electronic discovery.

Document review hasn't always garnered so much attention. Black's Law Dictionary defines discovery as a "pretrial device that can be used by one party to obtain facts and information about the case from the other party." Document requests are only one of several pretrial devices that can be used to obtain information about a case, along with oral depositions, written interrogatories and physical and mental examinations.

Awareness surrounding document review has exploded in recent years because of the immense amount of data that spews out of every digital pore in the modern world. Human lives and corporate misdeeds are laid bare in tactless e-mail threads and relevant

information prowls around the digital recesses of every computer and network server. At its most basic level, document review segregates responsive documents to be produced from the privileged documents to be withheld. Obviously, reviewing relevant documents provides legal counsel the opportunity to uncover pertinent issues and devise their

strategy. But the anguish of staring at hundreds of gigabytes worth of e-mail is becoming an impractical responsibility, not to mention a costly endeavor.

Depending on who you talk to, document review can account for 50-90 percent of the costs involved in a litigation matter. Tom O'Connor, director of the Gulf Coast Legal Technology Center as well as the Legal Electronic Document Institute, attributes the high cost of document review to the archaic billable hour. O'Connor says that document review is expensive "because it is done predominantly by attorneys and billed accordingly. They charge an hourly fee and often a markup."

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"The whole idea of document review still centers around the antiquated concept that an attorney has to 'touch' every document," adds O'Connor. This process is inefficient and often simply impossible. This notion has less credence today because of the availability of technology tools that can rummage through electronic documents to separate responsive information from worthless flotsam. Once that initial digital sifting is done, only then does it makes sense for attorneys to bill their time and strain their eyes looking at the resulting collection of truly relevant documents.

The best way to cut costs on a document review is to simply have fewer documents to review. While this is painfully obvious, it implies that a litigation team has been prudent in properly collecting and processing the digital information in preparation for the review. The more data that can be culled and filtered out before the review, the less data you'll have to load into your review platform. Less data requires less time to review.

It should go without saying that an effective document review requires a competent

amount of planning. This critical step is often overlooked because lawyers just "know what they're looking for" or it's just assumed that someone at some point is going to look at the documents. This is precisely why a discovery plan is now required by FRCP 26(f),

commonly referred to as the "meet and confer." Both parties to a litigation matter are expected to discuss the "discovery of electronically stored information, including the form or forms in which it should be produced." This rule calls for the parties to contemplate how they will be reviewing and producing relevant electronically stored information. Such an exercise would indicate that each party has at least considered the software platform they will be using to review the documents. There are hundreds of software vendors in the market today that are willing to host your electronic data and sell you the software to review it. Different review strategies may require different review platforms. Some platforms offer a tediously conventional database that merely list all your

documents, while other platforms feature innovative visual interfaces that can help you quickly jettison non-relevant documents.

Overseeing a document review requires project management skills — a class that's not taught in law school. Successful review managers know how to assemble a capable review team as well as develop a functional coding or review manual to guide the team in the project. Many lawyers possess brilliant analytical legal minds, which have difficulty

adjusting to the dry, mundane world of supervising a document review. Inexperience and lack of enthusiasm will always result in wasted time and resources, which results in more expensive document reviews.

Lawyers are busy folks, so it makes sense for them to hire people to do the work they can't get to. But when it comes to document review, lawyers appear to have a hard time letting go. After all, it's the documents that potentially hold the crucial information

necessary to mold the legal strategy and arguments of a case. It makes sense, then, that the most experienced lawyers (which typically means the most expensive) should be looking at the documents rather than a junior associate, a contract attorney or a lawyer in

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a foreign country.

On the other hand, tighter client budgets have opened the door for vendors that specialize in outsourced document review. For example, the Huron Consulting Group caused a

noteworthy ripple in the e-discovery world last January when they announced their new litigation support initiative called V3locity. The service was heralded in a press release as an "unprecedented predictable fixed-per-page priced e-discovery service encompassing processing, hosting, review and production services."

Huron's V3locity initiative provides a one-stop shop for an entire e-discovery project, but what makes Huron so different when it comes to reviewing documents. Shahzad Bashir, Huron's vice president for legal consulting, says the company has been helping law firms and corporations with document review projects for several years and knows what's required for a successful project. Bashir also says that Huron has more than 750 trained document reviewers around the world, with the majority located in the United States. If your matter involves pharmaceuticals, technology patents or oil and gas law, Bashir says Huron can provide reviewers who specialize in those particular areas.

But is it possible that straightforward experience can truly slash the costs of a document review while still providing high levels of quality and accuracy?

Bruce Olson, in his TechnoLawyer TechnoFeature entitled "Everything You Need to Know About Review," makes the point that temporary attorneys and offsite review vendors are more adept at using the relevant review technology and can, in many cases, complete the review process in a faster and more economical way than a law firm's attorneys or other employees can ever hope to do.

That view is echoed by David Shub, vice president of discovery strategy at DiscoverReady. Because of DiscoverReady's experience with a vast array of document review platforms on the market today, they can tell you what tools are going to work best for your case and what platform will allow their reviewers to get through the documents faster. Most lawyers can barely manage to learn one litigation support software application, much less be

comfortably familiar with the wide — and expanding — range of industry options.

If outside vendors are more efficient and proficient at reviewing documents, why is there still such a big hesitation to outsource projects? O'Connor points to a recent post on the Adam Smith Esq. blog where Ray Bayley of NovusLaw compared the health care industry, where about four percent of all workers are doctors, to the legal industry, where more than half of the workers are lawyers.

Obviously, not every aspect of the document review can be outsourced. But lawyers are being forced by their clients and the economy to consider review alternatives such as automated systems and offshore help. And while this realization may alarm lawyers, O'Connor points out that many corporations today already have facilities around the world and have become very comfortable outsourcing business processes that have traditionally

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been kept onshore.

If lawyers have a hard time trusting others to adequately review documents, they will most certainly balk at having a computer do the job. How can a machine possibly replace a lawyer? The answer is that while a machine cannot replace a lawyer, it can help

attorneys be more efficient.

"Technology does not and cannot take the place of review attorneys even in spite of its tremendous benefits and promise," writes Craig Carpenter, vice president of e-discovery solutions at Recommind Inc., a company that provides technology that groups documents together based on words and concepts identified in the files. "What it can do, however, is automate much of the heavy lifting attorneys might otherwise need to do, give them deep insight into documents before they have ever been read and allow attorneys to

manipulate even massive document collections quickly and with great accuracy." Lawyers, of course, can always go back and look at the documents that an automated review determines to be non-responsive. Given that, the use of an automated review tool can take a significant amount of unnecessary work off the front end. This will obviously result in lower billable hours, but at least the irrelevant drivel has been skimmed off the top.

In most e-discovery projects today, attorneys wouldn't even think of starting to look at a document collection until it had been de-duped and filtered through keywords. If lawyers can trust computers to accurately filter information based on keywords — a practice that was scorned in the not-too-distant past — then a confident leap towards ubiquitous automated review will happen in the next several years with new search methodologies and technologies such as concept searching.

The costs for document review have traditionally been measured by time. It takes time to read through e-mails and documents, and lawyers typically charge for the time spent on a document review just like they charge for their time spent on any other work they do. But lately there has been quite a bit of buzz about creative per-unit pricing for document review as opposed to the conventionally accepted billable hour. Such pricing is the

keystone of Huron's V3locity initiative, where the fixed per-page price includes the processing, hosting, review and production of every electronic document that gets

reviewed in a project. Huron's Bashir says the pricing scheme was designed to provide in-house counsel with a level of cost predictability when it comes to document review

projects.

Instead of a per-page price, DiscoverReady charges by the document, but only after a thorough examination and sampling of the data that is to be reviewed on a given project or after becoming familiar with a client's data through prior projects. DiscoverReady's broad experience allows them to provide fairly accurate initial estimates to their clients. But they do not fix the per-document pricing until after they get a better sense of the

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document population and the expected rate of review.

Both Bashir and DiscoverReady's Shub recognize that there are risks inherent in their pricing models. No one can anticipate every problematic document that can crop up in a review. And a fixed-fee, per-unit pricing model may miss valuable revenue that an hourly fee would most certainly catch. Perhaps that's why the billable hour is still so prevalent. As much as lawyers hesitate to admit it, the landscape for document review is changing dramatically. The sun is setting on the days when lawyers can throw highly paid bodies at a document review and continue to bill by the hour. To stay relevant, lawyers will have to get more creative in their pricing structures and more comfortable with alternatives such as automated review and off-shore staffing. The mountains of digital information will continue to grow and we will all need some guidance when it comes to climbing to the top.

Brett Burney is a principal at Cleveland's Burney Consultants, which provides electronic discovery and litigation support services to law firms. He writes a regular column for Law.com's Legal Technology Center and is a member of the editorial advisory board at Law Technology News, an Incisive Media publication affiliated with The Recorder.

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