With the ever increasing use of technology to manage corporate information, management of potential electronic evidence in litigation is a challenge for any legal team. However, with good planning and appropriate tools, it is possible to rein in some of the cost and time pressures this process notoriously brings.
The sheer volume of electronic information that commercial activities generate means it is simply no longer possible to review each and every piece of material that could be disclosed. Electronic review tools lay a pathway through the mass of information which might potentially be disclosed to the point where manageable volumes can be reached.
The cost of any disclosure process is always a significant part of the total case spend. Electronic review of electronic information (e-disclosure) is no exception. This article outlines some of the strategies that can minimize the cost of this process.
Before a Claim Arises
Disclosure has often been equated to an iceberg. It is imperative to know what sits above and below the water line because what is below is often more dangerous than what you can see above. Pay attention to both!
The starting position is to ensure you have up to date knowledge of your client’s data universe, IT infrastructure, data accessibility, custodians of all data and other data sources, particularly external storage (for example, archived electronic data).
Electronic business documents and related metadata may be stored on various media within your client’s organisation including:
• networked file servers – shared drives, networked user drives, document management systems
• hard drives of business PCs, home PCs and notebooks
• handheld devices such as Blackberries, Palm Pilots and mobile phones
• portable media such as CDs, DVDs, memory sticks, floppy disks, etc.
Strategy 1 – Effectively Negotiate the Scope of Disclosure
As best you can, analyse the total cost and burden of disclosure on a case-by-case basis. Once you have this information, you can then enter into negotiations with the other parties, prepared with data assessments and estimates of your disclosure commitment. At this time, in accordance with the procedure in most Commonwealth common law jurisdictions, you should speak to the other parties to negotiate a protocol for the electronic exchange of disclosure material. You can find information about this draft initiative in the UK by going to the Litigation Support Technology Group (LiST Group) website at www.listgroup.org.
The biggest cost savings in this area are achieved by ensuring your client is litigation ready and by attempting to limit the scope of disclosure orders. This will in turn reduce data volumes you will have to collect, process, review, produce and manage.
Strategy 2 – Employ Smart Culling Strategies
Once you have identified what needs to be disclosed, technology can help you cut the disclosure volume back down to manageable levels. You should actively explore de-duplication options (where appropriate to do so), enhanced keyword-driven culling solutions and, if appropriate, investigate the use of ‘concept search’ tools (for example, searching by synonyms of keywords) to further reduce the volume.
Auditing the review process is important at all stages. You should employ data sampling techniques when possible to double check that the methodologies you are employing with the above solutions are accurate and effective.
In the field of e-disclosure, technology is moving rapidly and it is important to have a basic understanding of the capabilities of this technology and how it can assist you to manage the disclosure process. This might be something that you outsource if there is no expertise within your firm.
Potential cost savings can be made here, as up to 5-10% higher culling rates are achievable using the above electronic methodologies instead of a manual process.
Strategy 3 – Assemble the Right Review Team
It is important that you evaluate reviewer staffing models for each project. The team of reviewers can be based on one or all of:
– in-house resources
– embedded legal review teams (using local and/or offshore outsourced contract lawyers)
– outside counsel
With any of these models it is important to designate a strong internal review management team and to define clear roles and responsibilities which must include technology management and technical support.
It is also important that substantive case information is gathered in a brief so that appropriate review staff can be trained up, and that any staff turnover does not affect the integrity of the review.
Potential cost savings on review rates are achievable if you use the outsourced model particularly the offshore embedded review team model. With the availability of highly skilled practitioners in other Commonwealth common-law countries, such as Australia and Canada, this model can easily and quickly be implemented in these countries with great cost savings to the UK legal market and its clients.
Strategy 4 – Optimize the Review Environment
If you are setting up the review environment, it is important that you test and monitor the performance of review tools you have decided to use, together with the hardware you are implementing. Ensure that all computers meet minimum system requirements. In most cases, you should have large monitors (19 inch) or dual monitors available to review staff.
You also need to be aware that selecting the review tool for e-disclosure is not ‘one size fits all’. You may have an in-house product which may be good at search/retrieve but not good for e-disclosure review. Prior to committing one way or the other you should undertake a technology evaluation. This doesn’t mean you have to use the review technology forever, but rather apply it to the right part of the process for a select period of time to get the task done.
Cost savings in this area come primarily from faster review rates and happier reviewers.
Strategy 5 – Organise the Review Workflow and Review Assignments
Always set out a clear workflow of how documents will pass through the review process. Organise the review team, documents and work assignments in a logical manner by creating smart review categories such as:
– custodian
– priority topic
– concept
– folder
Beware of having too many fields for the reviewers to complete and too many choices for the content (‘population’) of each field.
Increased review efficiency rates will provide you with cost savings here if you do the workflow preparation before you start (such as settling a review protocol).
Strategy 6 – Analyse Opportunities for Using Culling Review Tools and Techniques
Remember that this is an evolving process. You should continually perform file culling using the review tool, if appropriate, by undertaking such tasks as:
– modifying keyword searches
– examining culling performance
– improving culling methods for successive data loads
Don’t forget the simple things. Identify irrelevant documents and remove them to a different area of the database. Actively involve reviewers in providing feedback. Pursue bulk-tagging opportunities within the database. Identify and then perform an accelerated review of low-priority documents.
All of these processes should increase culling rates by another 5 -10 %, saving you further costs.
Strategy 7 – Provide Effective Training and an Accessible Brief
Everyone in the review team will be making judgment calls on material they review. You want your team to be in no doubt when they should ask ‘higher up’.
So, deliver effective training on key aspects of the case, and practical training on using the review tool. This should be rolled out to all reviewers, and you should ensure they are left with a brief of easy reference material (primarily the review protocol) to assist them whilst they are reviewing. Ongoing assistance can come from their supervisor and other quality assurance staff onsite.
Calls made outside the review protocol should be immediately communicated to the reviewers, and all review protocols updated to reflect the call.
To manage costs here, remember that pre-planning and training, with good reference documentation, will actually improve review results and cut down on wasted time.
Strategy 8 – Track Review Progress and Efficiency
Whether you have a small or large case, you have to know where you are and where you are going. The use of reporting tools to enhance visibility and management control of the review process is a must.
Review the following to ensure targets are being met by reviewers:
– documents reviewed per hour/per day
– individual reviewer productivity
Early identification of issues or aberrations will always assist in cost savings, as it encourages the weeding out of poor performers, improves the work quality, and accelerates overall review rates (with a potential 3-5% increase).
Strategy 9 – Design and Implement Quality Control Procedures
Quality control procedures should be carried out at the end…but also at the beginning.
There should be an ongoing analysis of review calls and real-time feedback provided to reviewers. This ensures you catch any coding incompleteness or inconsistency through 2nd review and data sampling (ie running simple as well as sophisticated queries).
Update the review protocol whenever necessary and, once again, convey the changes to all review staff.
The biggest benefit you will get with these controls is quality control rather than cost. However, catching mistakes early saves the time spent in re-review, which in turn helps to accelerate review rates. Cost savings are being made here but are inevitably less measurable.
Conclusion
Although there is not a Practice Direction in the UK this does little to hinder the process as little of this guidance extends to the practicalities of the review process by each party to the litigation.
Whilst every review is different, legal teams can significantly benefit from established repeatable processes. In house litigation management has the scope for developing Standard Operating Procedures and companion documentation for all key processes.
Having these internal processes in place not only allows you to act more quickly when a claim arises, but means you are better informed on cost issues from the start and can advise your clients accordingly..
Sandra Potter is the Managing Director of Potter Farrelly & Associates and has an in-depth knowledge of the legal profession and its unique workplace culture is the result of a 20-year career as a prominent legal technology consultant for law firms and the courts globally.
