I have been attempting to write this post for several months now but other topics got in the way. In a sense this post falls at the end of the series in which I tried to go through the entire process of a modern case piece by piece. Therefore, by its very nature there will be some referencing to previous posts because this post encapsulates all that has gone before in collecting and processing documents and data as we move into the stage of review. However, the overriding factor here, which is why it needs a post of its own, is that 70% of the cost of a case is the reviewing of documents. That is a huge percentage and experienced corporate clients know this and demand reductions...but never, ever at the expense of efficiency. Before, we get into the meat let us be clear that I am referring to not only litigation, but investigations, regulatory and otherwise, as well as competition cases, arbitrations and the like.
Because reviewing documents is by far the major cost of any case, lawyersmust look at all the methods available to make the review efficient and must always bear in mind that important word - proportionality. It is a simple as this - you will not recover disproportionate costs even if you win your case. This is a major factor that Judges in other jurisdictions examine at the Case Management Conference. If a case involves a dispute valued at R1m, then spending R2m on collecting, processing and reviewing documents is simply not on and, more to the point nor is it necessary when using a proper review strategy and all of the available tools of eDiscovery technology.
All lawyers know that you cannot simply review blindly (forgive the pun!) - you must have a strategyand know what you wish to achieve from your review - even more so with electronic docs because of volume, complexity etc. You need to know what type of case it is in the sense of the types of documents and data. For example is it “email heavy” whereby it is important to maintain the “family groups” (emails and attachments), or is it financial and therefore “spreadsheet heavy” or is it a construction case which has a large amount of wide format plans etc.? Where there is ESI involved, you will need help to be sure you have collected (properly!) all of the possibly relevant ESI.
You have to know the effective date range of the case, and who are the main custodians and how many of them there are. What are the issues in the case? What are the keywords for searching purposes? The latter is a big topic and one I covered exclusively in this post - you MUST have help and advice about your list of keywords.
Also, remember that I have commented that a former High Court UK Judge once said to lawyers at a seminar I attended, that if they did not know the key custodians in their case, the effective date range and the keywords then they are negligent. Still on the point about case strategy I strongly advocate consulting a competent eDiscovery service provider (or eDiscovery Consultant!) at the earliest possible stage for help on many of these matters. One important piece of help would be about the possible volume of data and documents that is involved in the case and it is crucial to have a handle on this as early as possible.
Once all of the above has been done then we can consider a definitive review strategy. Firstly, let us quickly dispel the myth that a lawyer has to look at every single document. I dealt with this aspect in some detail in this earlier blog post.
As I said in that post, the smart way is to allow technology to “look” at every document so that lawyers “eyes on” needs only to be those that are most relevant. At this stage, hopefully, you will have agreed with your service provider about such matters as de-duplication, whether there are any foreign language documents involved etc. Next, depending upon the volume, decide upon a strategy using analytics technology to further “cull”; highlight possibly relevant or privileged docs; and eliminate non relevant ones. Other than keywords there are so many features available as I discussed here. Next there is technology assisted review (TAR) or predictive coding to be considered which I covered previously in this introductory article.
Last but by no means no least there is a structured manual review and law firms may conduct this themselves but if experienced manpower is an issue, and it often is there are other options especially here in SA. It is important to remember that corporate clients will not want to be paying high rates for Partners, Directors, Senior Associates or Associates to look at non relevant docs and therefore using a combination of technology and outsourcing part of the review to specialist LPO companies is not only sensible but a positive bid winning strategy. SA is blessed with good quality LPO companies, when there was a time that only India really offered these services. Now, with the lower cost base, better time zone differences and less possible language and interpretation issues, SA lends itself superbly to being a really important LPO centre. This does not mean that only law firms and clients from outside SA should use them - they should be used inside SA whereby they become an extension of the law firms reviewing team. As I say, SA has many such companies and it is always difficult for me to talk about specific companies in my posts but Integreon is a global LPO company with a base here and then there are two companies which I can speak about as I have actually worked with them. Both Cognia Law and Exigent have offices in Cape Town (as well as elsewhere) and I know both very well and unhesitatingly recommend them - contact me if you want more details and contact points. Sometimes companies such as Cognia and Exigent are used to perform what we call Tier 1 or first pass review which is often more about eliminating irrelevant documents than finding relevant ones, before the law firm performs the next review which would be where positive decisions would need to be made. Those of you who read my posts may be thinking that if technology assisted review is used then why would there be a need for this kind of LPO review? I take a different view and believe that the two are complimentary. Firstly, not all cases are suitable for TAR but in the event that it has been used, the case may be such that there is still a large volume of documents to be reviewed manually and the law firm may well need some experienced help. I would go as far as saying that since TAR has become more popular then companies such as Cognia and Exigent find themselves playing a more strategic reviewing role and becoming involved in other aspects of the case. When I have been instructed in a case I try to keep the Partner or lead lawyer away from reviewing documents other than specific ones that need his or her eyes because, as I said, it is a waste of the clients money for the most expensive lawyer to be reviewing documents that do not require his/her expertise. This sort of thinking can win a pitch for business and companies such as Cognia and Exigent can offer their experience and expertise.
In summary if I were a CEO or Head of an in house Legal Team I would want my external law firm to know all that appears above and I would want them to tell me exactly how they will use technology and LPO outsourcing to best handle my case and in the most cost effective manner. To do otherwise might win one matter for the law firm but it is unlikely to win future ones.