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Document Review: People, Processes and Technology

July 26, 2022

Legal Talent Outsourcing

Technology Enhances People and Processes in Document Review—It Doesn’t Replace Them

In 2015, Elon Musk said self-driving cars that could drive “anywhere” would be here within two or three years. Musk was, and is, not alone in his optimism (in this case, over-optimism). When it comes to the development and integration of new, transformative technologies, prognosticators often overestimate how quickly they will come to market, and the impact they will have once they do. The next big thing always seems to be two or three years away.

And it’s no different when it comes to artificial intelligence-enabled document review software. We’ve been hearing for years how software will, in the words of venture capitalist Marc Andreesen, “eat the world.” And that includes the world of ediscovery and document review.

And while there’s no doubt that software serves an important role in document review, it’s only one piece of the puzzle.
 

The basics of Document Review and What Makes it So Challenging?

Document review is an important part of the litigation process by which litigants identify, organize and analyze relevant data and documents. The core basics are:
  • The first step in a document review is identifying what documents are relevant to the case.
  • Step two is for lawyers or general counsel to determine what documents may be privileged in some way, and therefore can be withheld from the other side.
  • Finally, relevant, non-privileged documents are produced to the opposing party.
There are a number of challenges associated with document review. One is that collection is difficult because relevant data is stored in so many different places for most businesses of any size and scale. Another is the short timeframe for conducting document review. In federal court, initial disclosures are typically made within 60 to 90 days after the complaint has been filed. And the risks associated with making a mistake are significant. It’s simply not acceptable for a privileged document to slip through discovery or an important email to surface as an unwelcome surprise at a key deposition.
 

People, Processes and Technology in Document Review

In the past, document review was often considered as an expensive training ground for young litigation lawyers. Today, it’s a specialty that is commonly unbundled from the higher level (and more expensive) services that law firms perform. 

Document review, and the discovery process more generally, still accounts for a significant portion of litigation costs in a case. Those costs, coupled with the risks associated with document review errors, have led to significant efforts to make document review more efficient and effective through (i) outsourcing to providers such as Lexitas and (ii) the use of software via an eDiscovery technology provider.

Given all the hype surrounding advancements in technology, particularly in the field of artificial intelligence, it’s not surprising that people have overly optimistic expectations about the capabilities of document review software.

The reality is that high quality document review is driven by people, process, and technology. The right combination helps increase the effectiveness of the review and lowers the cost of litigation.

In short, technology is an accelerator of results, not a silver bullet for every problem. It’s only as effective as the people who use it and the process it’s a part of. It’s great at performing routine, repetitive tasks—to be clear, an important part of document review—but cannot apply judgment, reasoning and make distinctions about complex issues the way a lawyer can and must during discovery.
 

Critical Steps to an Effective and Efficient Document Review

With the right people, processes and technology in place, document review can be done more effectively and efficiently. Some of the most important steps involved the review process include:

1. Defining Objectives
It’s important that the team is on the same page as to the project’s context and objectives. For example, providing reviewers with context such as whether a project is related to a government investigation or standard commercial litigation is a crucial distinction.

2. Assembling the Right Team
This involves determining: How many levels of review will be involved? How much attorney review will be required? Whether any particular subject matter expertise is required? What software is being used? And whether review is being done remotely or in-person?

3. Establishing Coding Protocol and Case Materials
Providing clear coding protocols for relevance, privilege and confidentiality, as well as any supplemental case materials, in advance of the review start date can help ward off delays and increased costs. Having access to this information allows a project manager to align with the client and outside counsel, ask clarifying questions, identify missing items, and optimize team training.

4. Choosing the Right Technology
Depending on the case goals, budget, data size and timing of a document review, it’s important to assess technology options and their unique capabilities in advance to determine which, if any, additional tools to implement.

Document review is often perceived as a “commodity” when in fact it’s a critical part of every case. Accordingly, putting together the right people, process, and technology in place to enable document review to proceed efficiently and effectively is an important task.

It’s necessary to look at the big picture, and plan in advance, to ensure that the important steps outlined in this article are addressed. And, no, technology alone is not the answer. The solution, like challenges of document review, is multifaceted.

Contact us to learn more about ways we help our clients handle their document review matters.
 
Author Image

Meron Hewis

President of the Legal Talent Outsourcing

Meron Hewis is the President of the Legal Talent Outsourcing Division of Lexitas. Ms. Hewis has over 20 years of experience in legal consulting, project management, and alternative legal talent outsourcing solutions. She is a thought leader in the industry, providing unique legal solutions and designing the operations of various legal programs internationally.

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