Pop quiz: Which is growing faster – corporate data volumes or ediscovery expenses?
Trick question! The answer doesn’t matter, because they are each skyrocketing, and legal teams are on the hook for both.
As data storage becomes virtually limitless and new workplace technologies emerge, organizations and their employees are generating exponentially more data each year. Data retention policies can help, but the fact is that legal teams are responsible for preserving, collecting, and reviewing mountains of electronically stored information. Today, we’re going to focus on the review, formally known as document review, side of things.
What is Document Review?
Document review is the stage of the EDRM in which organizations examine documents connected to a litigation matter to determine if they are relevant, responsive, or privileged. It is often the most labor intensive and expensive part of the ediscovery process. Review is the final stage before production, in which a litigant provides discoverable information to its opponent.
The purpose of document review, then, is to identify what information falls within the scope of discovery. Under Federal Rule of Civil Procedure 26(b)(1), that includes “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”
In addition, document review can also be used for broader purposes, such as regulatory investigations, subpoena and third-party requests, internal investigations, and in due diligence assessments for mergers and acquisitions.
How is Document Review Typically Managed?
It is achieved today through a combination of human reviewers and technology. Reviewing lawyers must understand the legal and factual issues in the litigation and make the necessary judgment calls as to privilege and responsiveness. Often, teams of contract attorneys, paralegals, or outside vendors are employed to examine individual documents one at a time to determine what type of information they contain. These processes are becoming less labor intensive as technology evolves, but review still represents the part of the EDRM where the most cost savings are to be had.
Considerations for Bringing More Review In-House
Even in the face of growing data volumes, legal departments are receiving pressure to reduce legal spend. It’s no secret that data processing and review are the most expensive stage of the EDRM, but legal teams need a realistic option for reducing these costs.
Outsourcing everything is not sustainable precisely because of the growth of data. It’s simply too expensive, not to mention you are at the mercy of another company’s timelines.
On the flip side, in-house document review drives huge cost savings as long as you equip your team with the right tools. Most corporate legal review needs can be easily managed in-house, but what happens if you are facing a class action suit that would require hundreds of reviewers?
The Hybrid Model: Save Money Without Overwhelming Your Team
We believe the most useful model is a hybrid approach to document review. Put the right tools and processes in place to allow you to handle the majority of your review in-house without overburdening your team. Reserve outside spend for large, highly complex, high risk cases – that’s what they do best, after all!
Another option is to simply process the data in-house, which allows you to dramatically reduce data volumes before sending to outside counsel. Because a typical third-party service might charge hundreds—or thousands—of dollars per hour for document review, even a small reduction in data volumes can have a significant impact on the bottom line.
How to Get Started with In-House Review:
First, Identify the Gaps in Your Process
- Do you have the ability to process data? In other words, can you turn the ESI from multiple data sources into a format that is easily viewed and tagged.
- Where does your processed data live? You’ll need a secure storage environment that will protect highly sensitive matter data.
- Do you have a review tool? Trying to rely on email systems or pdf viewers is labor intensive and potentially risky if metadata is altered in the act of reviewing documents.
- Can you easily export data? When you do want to involve outside counsel, you need the ability to send *only* what you want them to review.
Second, Enable In-House Review by Implementing the Right Tools
- Invest in processing and review software
Obviously, we’re biased, but there’s simply no scalable, time-efficient way to handle review without technology. Look for a tool that is easy to use and designed for typical corporate legal matters, otherwise you might be overinvesting in highly complex software that is designed for outside counsel’s large-scale review needs.
- Get organized
Even before processing your data, you can use consistent naming conventions and logical data sorting to save time down the line. For example, organize data by custodian name and I.D., which will be important for establishing a defensible tracking chain of custody.
- Cull it down to size
Use technology to automatically eliminate the fluff, such as deNISTing and deduping data sets. Then use the culling criteria from the meet and confer conference to zero in on the potentially responsive data set (i.e. priority custodians, date range, etc.).
- Review the responsive data
Use keywords to identify relevant information and tag documents as they pertain to the matter.
Once the potentially responsive dataset has been identified, you may need to send it to outside counsel or directly to opposing counsel, depending on the complexity of the case. Rolling productions help you meet timelines without overproducing; tags and Bates numbering will keep everything organized.