Remote eDiscovery: Pandemic Accommodation or Improvement
Figuring out how to effectively work remotely is no longer a choice
By David Greetham
With the advancement of the COVID-19 pandemic, working remotely (and the associated challenges of a distributed workforce) have leapt to the forefront. Many legal departments and law firms were simply not organized or resourced for employees working
from home with such little notice – and en masse.
The idea of a remote distributed workforce is not new, particularly to the many eDiscovery services providers who have been operating in remote environments for some time moving data storage, processing, analytics, and review to the cloud or performing remote forensic data collections. In short, working and operating remotely was, for eDiscovery, not a COVID-19-necessitated paradigm.
An Inflection Point
For legal departments and law firms, the operational changes necessitated by COVID-19 may later be seen as an inflection point that sped adoption of a remote workforce (and business). Activities such as remote document review (discussed below) that were on the “we’ll never do that” list – a list that has always been chipped away at by technology, shifting priorities, and emergent challenges – are quickly becoming the only recourse rather than a choice. Whether these changes, dictated by lockdowns, socialdistancing, and “nonessential” designations are temporary or party of the “new normal” remains to be seen. But the operational benefits in terms of reduced cost and increased efficiencies will be noticed. And efficacy will likely have been proven.
Long before COVID-19, there was already a gradual migration away from the traditional eDiscovery services provider office location – with provider staff gathered together in a single location. Tools that support remote work and collaboration, and technologies that support remote eDiscovery operations have made this possible. Cloud technology has been a key driver.
The fact is that even though professionals are increasingly dispersed, the data is now increasingly “centralized.” It is substantially more efficient and effective to collect, process, host, review, and produce ESI in a secure cloud environment, unconstrained by the physical location of either the data or those who need to work with it.
Move to the Cloud
For Ricoh eDiscovery, the transition to remote work began some time ago. Consider that in 2007 more than 98% of data collections performed by Ricoh were done onsite. Today it is less than 5%. Five-plus years ago when Ricoh proposed moving their legal services clients to the cloud, less than 0.05% declined to move. Industry-wide this shift has been occurring with increasing rapidity.
Experience has demonstrated that remote eDiscovery management leveraging both commercially available and proprietary tools for forensically sound data collections and ESI processing, review, and production, is in the cloud:
- Lower touch process (less movement, fewer discoverable copies, and enhanced control)
- Less restrictive geographically
- Scalable (near-instant provisioning and decommissioning)
- Eminently secure
- Cost effective (pay for consumption and the resultant shift from CapEx to OpEx)
The “new normal” that this pandemic will create with companies fully embracing a remote workforce (or not) remains to be seen. However, as the legal technology services industry has been on a steady path to an increasingly distributed workforce remotely managing all phases of the discovery process, perhaps the current circumstances is an accelerant, rather than an interruption.
But could this also be true of document review that has always demanded corralling attorneys into highly secure, tightly managed locations? Work-from-home document review is perhaps the most stalwart entry on the “we’ll never do that” list.
The End of Document Review Centers?
Long before COVID-19, document review, as a result of scale and consequent cost, shifted from law firm associates to review centers staffed by contract attorneys that themselves became increasingly remote to take advantage of low-cost geographies (i.e., wage arbitrage). Nevertheless, the premise of corralling reviewers, project managers, and specialists in a central location remained unchanged.
Until the COVID-19 response insisted otherwise.
Document review is, at least for now, a decentralized, work-from-home affair. It has transformed “We’ll never do that,” into “We have to do that.” But will this change have permanency? It seems likely that discovered benefits will be weighed against assumed disadvantages, post-pandemic.
Security has always been of foremost concern. Any analysis of a remote review workforce must take this into account. In fact, the same stringent security protocols can and should be be enforced for distributed review. And with the use of cloud-centered workflow, review center physical security is no longer at issue. Consider:
The use of company assets, not personal computers properly provisioned
- Desktop virtualization
- Data encryption in transit and at rest
- The use of secure FTP with AES 256-bit encryption
- The inability to screen scrape, download, print, or use externally attached devices
- Using multifactor authentication protocols (MFA) such as FIDO (Fast ID Online)
Perhaps the only security measure absent is confiscation of the reviewers’ mobile devices before entering the review room. Then again, review facilities typically do not use metal detectors, or check for micro devices like cameras hidden in glasses.
Efficiency and Cost Benefits
The financial benefits (to provider and client alike) and the access to attorneys with industry-specific expertise is very compelling. No longer constrained by geography, an organization can seek out the utmost qualified reviewers while avoiding travel and lodging costs.
Interestingly, at Ricoh we are finding that efficiency has increased approximately 10% with at home review. Better breaks, lack of commute, greater flexibilities, and strong remote-based support are believed to be contributing factors.
Also, given the better working conditions, contractor attorneys are amendable to more competitive pay rates. Even one or two dollars less per hour per reviewer can aggregate to large cost reductions for clients.
It may be that law firms and legal departments that allow service providers to operate in this fashion post-COVID-19 will see a competitive advantage over those who do not. What has been mandated as necessity now, may prove to be the mother of innovation. We shall see.
[EDRM note: David Greetham is EDRM’s Executive Advisor and Ricoh USA is an EDRM Guardian partner. David’s article, first published in Above the Law, was covered by 2020 EDRM Global Advisory Council leader, Doug Austin, in his eDiscovery Today blog.]
About the Author:
David A. Greetham, CFE
Vice President, eDiscovery Sales and Operations Ricoh USA, Inc.
David A. Greetham is Vice President of eDiscovery Sales and Operations at Ricoh USA, Inc., responsible for driving Ricoh’s computer forensic and eDiscovery services growth. Greetham oversees the division, which operates as the nation’s first private computer forensics lab accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB).
Throughout his career, Greetham has been retained by law firms and corporations as a Testifying and Consulting Expert in the area of Computer Forensics and is a Certified Forensic Litigation Consultant by the Forensic Expert Witness Association (FEWA). Greetham has testified as a forensic expert on many occasions both nationally and internationally. In addition, he is the inventor and developer of RemloxTM, a patented forensically sound “remote–collection” tool that has been deployed in 37 countries throughout the world.