Project managers are taught that the most expensive method of resolving a dispute is litigation. Yet the number of corporate lawsuits keeps rising, as does the number of documents in each lawsuit. If you’ve never worked with a legal review team, the process sounds a bit like black magic. Lawyers argue in front of a judge about relevant documents for the case and the judge announces which documents must be produced. Today, “producing” documents means searching through servers and data archives to identify files that meet the description (responsive documents) and then remove the documents you are not required to provide (privileged documents), such as emails with your lawyer. The process of identifying responsive documents while excluding those that are privileged, is people and cost intensive. The document review process is inefficient and outdated. In today’s blog we’re going to show PMs and PMO Directors the basics of eDicsovery, opportunities to develop a more cost-effective process, and how to discuss this opportunity with your Legal department. Ready? Let’s dive in!
We’re going to focus on the document review portion of eDiscovery. However, since our mission today is to demystify eDiscovery, let’s start with a high level review. You can divide up the stages a number of different ways, but this is pretty much the standard model:
- Identification: The process of interpreting instructions from the court to identify specific documents that must be provided to the court and the opposing legal litigators.
- Preservation: Copying a file is not good enough. Electronic documents are more than just what you can print. You need to preserve all data (including the file date), avoid accidental damage and backtrack anomalies (such as virus-infected files).
- Collection: You now gather together the documents where they can be accessed by other members of the team. A 3rd party provider may be used to “host” the data, providing reliable 24×7 remote file access.
- Processing: Many documents are exact duplicates: emails sent to many users, the same document saved by multiple users, etc. Most document reviews use some form of automated “de-duping” to reduce the total number of documents. The documents may be put into smaller collections for easier document reference and assignment of work.
- Review: Up to hundreds of reviewers may be needed, which then need to be given instructions on what to look for (responsive documents), and what to hold back (privileged). They then… read each and every document. Typically, a document reviewer can check 40-50 documents per hour. 85% of eDiscovery costs occur in the review stage.
- Analysis: As data arrives from the review, new patterns may be found that lead to new instructions to the reviewers and perhaps some keyword searches to verify that the collection has all the documents it should and reviewers are correctly identifying responsive and privileged documents.
- Production: The responsive documents are put together, the privileged documents are removed from the pile and the data (made available on the host site, on a hard drive, etc.), and perhaps a hard copy is given to the court and to the opposing litigators.
It’s not quite magic, is it? It’s all about finding the right documents while not releasing documents that are not required. Given all the technology to sort through large data repositories and find specific data, why is this process so people intensive? Well, lawyers are conservative by nature. They have been waiting for the courts to state which technologies are acceptable and which are to be avoided. According to Judge Andrew J. Peck, a speaker at the January Legal Tech conference, specific technologies are rarely “authorized” by the court. In a typical linear review, key word searching (via computer) is common, but Judge Peck stated that no court ever authorized key word searches. It made sense so people just went ahead and did it. Judge Peck believes that other technologies will move ahead in the same way, and first movers will reap a huge advantage. In fact, Judge Peck questioned why lawyers were not using the rule of reasonableness to force the use of TAR.
When a litigant is asked to do something unreasonable, they can propose an alternative. If you were sued for $100,000 it would be unreasonable for the court to require a “traditional” document review costing $150,000. When linear review is excessively expensive, it is reasonable to propose Technology Assisted Review (TAR) instead. Firms selling TAR solutions can provide you with documentation supporting their high rate of accuracy. For further support of your request, you can produce data on the low accuracy of “linear” reviews (i.e. people reading documents). Maura Grossman’s, “Technology-Assisted Review In E-Discovery Can Be More Effective And More Efficient Than Exhaustive Manual Review”, provides extensive data on just how poor the results of linear review can be. Simply put, if two lawyers on the same team are given the same documents to review, they will agree on what is responsive and what is privileged less than 50% of the time, and the high number of false positives raises costs for both teams of litigators. It is not uncommon for new information may come to light later in a review, or you may find that reviewers misunderstood or omitted instructions, or you just come up with a great idea for a search. It is both cost and time prohibitive to re-run a linear search (i.e. read all or most of the documents gain), but it usually costs very little and takes a few minutes to run a new TAR search. That provides the judge and both legal teams with much greater flexibility.
Now we all know how linear and TAR reviews work. We also know that the main roadblock to greater use of TAR is the lack of a clear direction from the court, and the conservative view of lawyers. If we can develop a method that addresses these two points, and can be applied objectively your organization can take advantage of the 50-70% lower cost of TAR.
Risk vs. Cost: The law does not require a special need to use TAR. But let’s act as if it did. Estimate the cost of a linear review; for cases where the review is close to the cost of losing the case (say 75%), you have a simple justification for requesting a creative alternative. This also applies if you are the injured party. Lower cost means you can pursue cases that would otherwise be too expensive to win. Feel free to tweak the risk/cost ratio, but keep it below 100% (there are other litigation costs).
The Judge: Different judges have different opinions, but both their court rulings and their opinion in legal journals are available for your review. Your legal team will have an opinion on which judges are for and against TAR (many will be neutrals). Make a list of judges against TAR, and leave them out of your sample. These judges might take offense at your request for TAR if their position is well-known, and that could negatively impact your case or influence future court decisions. You can be more conservative by selecting only those judges known to support TAR, but that might be a too small a sample. The risk of a negative outcome from a neutral judge is much smaller, since you’re just proposing an alternative for the judge’s consideration. If he says no, you just go back to linear review and wait for your next opportunity.
The Opposition: The opposing legal team might object to a TAR. But they are less likely to do so if the judge has supported you. Also, they will not be able to provide hard data that linear is a superior process, it’s just a more frequently used process. If they do raise an objection, respond to them. TAR can be good for both sides. If the judge accepts the “reasonableness” argument, he may support you with an alternative that is even more objectionable to your opponents (limiting the scope of the review?). On the benefits side…
Complexity: If the search is especially complex, and is therefore likely to benefit from additional late-stage searches and refinements that cost-effective in a TAR. Present the benefits for both sides to the judge and the opposing litigators.
Timetable vs. Scale: Linear reviews can have big teams. It takes time to bring on the reviewers, train them, get computers and licenses in place and then perform the review. TAR can be set up in less time, and can process the work faster. A typical reviewer can check 40-50 documents per hour. TAR depends on the specific setup, but one Cloud based provider quotes 500 documents per minute, and the search of virtually any size collection in under 1 minute. That’s equivalent to a team of 2,000 reviewers, or a team of 20-25 reviews working for three months. If the alternative to TAR is to extend timelines on the case, both the judge and the opposition may support TAR.
Free Review: TAR providers are developing innovative pricing models. Traditional pricing is by document, page, GB, or processing hours for the entire collection. A new model is to pay by result. You can load the entire collection (free), search repeatedly (free) and just pay for the documents that you want to extract. At Legal Tech, I spoke with PowerSearch, which follows this model. They encourage you to follow your current process, and then send your collection to them for reprocessing, as a second level of security. Process a collection of 1,000,000 documents (free!) takes a day and a half. Once processed, they claim that searches of any complexity will take about under two seconds. Try doing that with linear review!
And that’s it! You now have a basic understanding of the eDiscovery process, and a more in-depth understanding of the advantages of linear vs. TAR. The objections of your legal department to aggressively pursuing TAR are understandable, but they are also addressable. You now have a low-risk approach for discussing a TAR pilot program, with your Legal department and some information on the potential cost benefits for the firm. Making a shift from linear to TAR will reduce costs by millions, possibly hundreds of millions of dollars annually. The rising number of documents and the associated costs will eventually make TAR the default for eDiscovery. Early adopter firms will develop a competitive edge from TAR efficiencies. Start having those conversations, and begin reaping the rewards… and that’s my Niccolls worth for today!