eDiscovery in SA - Is SA the global centre for managed document review?

The answer is “No…… but it could be!” Next topic - oh, you want more on this one (stealing a phrase from my friend and inspirational eDiscovery commentator Chris Dale. In that case I will give my two cents.

In truth this is yet another topic that I have been asked about a lot recently and specifically asked to comment. Over a year ago I wrote on the topic of review generally but as I say, things seem to have accelerated and I am asked to write again.

Let us take a look at the history of lawyers reviewing documents in cases of litigation, investigations, arbitrations and competition cases. In the days before we had such things as emails and other electronic documents we would look at all the relevant paper documents, within the law firm using in house resources. More to the point, there was little alternative and the clients had no option to pay for this whilst even senior lawyers were trawling through documents, many of which were irrelevant. Then we had the electronic revolution which suddenly increased the number of documents to be reviewed markedly. We moved into the beginnings of eDiscovery technology and, still these documents were reviewed internally but at least the technology allowed for some elimination. Of course, the technology continued to improve, largely driven by the unwillingness of corporations to pay lawyers for reading everything, to the point that, now, there is so much that the technology can do by way of filtering and culling before we need to consider “eyes on” review. The use of technology and review go hand in hand - one does not replace the other.

Given that ever increasing volumes still leave a considerable amount of reviewing to be done even using all that technology has to offer, how do law firms handle this efficiently and cost effectively for their clients? Sadly, many do not and as clients become more and more costs conscious as well as “techie" savvy it behoves law firms to be creative, innovative, effective and smart about the way they work. For example, if there is a litigation team consisting of a Partner, Senior Associates, Associates and a couple of Candidate Attorneys you cannot have the first two or three of these looking at documents which could easily be filtered by less expensive members of staff. It is all about creating a strategy and workflow which does the job within the required timeframes but keeps the clients happy by utilising staff at lower hourly rates. This is all very well if the volumes are not too great or the timeframe not too onerous and the firm has a sufficiently large workforce, but guess what, more often than not this combination never happens. So, the law firm decides to use more of its Candidate Attorneys but some of these are working in the non-contentious areas of the practice and have no experience whatsoever of reviewing documents in contentious matters. How does this really help the proper review of a case?

What all of this is leading to is an outsourced managed review. Yes, yes I know lawyers want to keep as much as possible in house to preserve revenue but there are many cases when this is simply shortsighted. I have said many times that a smart law firm tells its clients that they have a defensible and cost efficient strategy for running their cases which involves a combination of using eDiscovery technology, followed by an outsourced managed review all leading to the main (and most expensive!) lawyers looking ONLY at those documents which require their specific expertise. That is the smart law firm I would hire.

Reverting to my history lesson, what we then saw in the US and the UK in the early part of this century was a growth of outsource review companies in countries such as India and the Philippines etc. Some law firms simply employed them to carry out first pass reviews and in some instances it worked okay but in a number it went horribly wrong. Partly it went wrong because the business dynamic was wrong whereby the focus was on nothing more than getting documents reviewed quickly and cheaply and there were insufficient instructions, quality control and accountability. What we then saw was the development of companies specialising in this field and the phrase Managed Review became a buzz phrase in our industry. It is right to say that some law firms acknowledged the value but did not appreciate the revenue loss, so set up their own centres away from their mainland facilities and this attracted the name “near shore”.

Let us look at some of the features and benefits of a managed review and then tie it all in with SA. Firstly, a managed review performed by a specialist service provider with an experienced lawyer at its helm allows for effective communication and collaboration to create and maintain a strategic workflow and review structure. The service provider uses its own staff lawyers or hires contract lawyers specifically to handle each case based on its requirements. You can see the difference between this and using Candidate Attorneys from the Conveyancing Dept! Furthermore, and this was another prompt for this post, I was contacted recently by a UK law firm asking for recommendations for a document review to take place in SA by Portuguese speaking lawyers. It would be highly unlikely to put it mildly for a law firm to have the resources to deal with this scenario. What else do you get from a managed review? You get consistency achieved by quality control through systematically sampling review decisions. You get immediate awareness that one reviewer is struggling to keep up with the rest in terms of documents reviewed and/or correct decisions made. You get your results quicker than in house which allows more time for the next stage of reviews prior to discovery, settlement negotiations or trial. All of this can be done by an in house lawyer, I hear you say. Really?

Do we want highly paid lawyers spending the necessary hours managing a team of reviewers? Setting up a review team, creating a workflow, organising and running quality control checks and generally managing  a team of contract lawyers is time consuming and, dare I say, specialised. It is not what a litigation lawyer at a law firm does or was trained for. He has what we might call, a “day job” and his billable hours need to be spent on what he does best not the constant management of a review team.

The solution is to outsource to specialist companies. They have access to the appropriate in house staff or contract lawyers. They have or can find lawyers with a particular language. They know how to create workflows, QC, and manage. In many cases they can utilise facilities they have in other countries where the case has that sort of requirement. They are experienced, these days, in many of the eDiscovery solutions and can easily work or be trained in their use. Best of all, they can simply focus on the review with which they are tasked which in house law firms simply cannot as there is so much else they have to be concerned about. Furthermore, within the bounds of their contract they are accountable. Finally, there is an important cost factor which I will talk about later.

The relevance of all this to SA is that this country is blessed with some really good outsource providers. There may be more but I want to mention 3 because I know them very well and know people in each. Exigent is based in Cape Town as is Cognia Law and both have offices in other parts of the world. I first worked with Exigent almost 10 years ago when I ran a litigation support company in London and have worked with them since I moved to SA 3 years ago.  I met Cognia when I moved here and have worked with them during my time here. Integreon is a global company and their SA base is in Johannesburg and I have an excellent local contact. Coincidentally, one of my longest standing UK eDiscovery colleagues ( we first met 17 years ago!) has recently joined Integreon in London. All of these companies are excellent and I have no hesitation in recommending them. I know that they receive work and instructions from UK and US law firms, amongst other jurisdictions, and part of the reason is the economy in SA. We have a lower cost base than these countries obviously. SA also offers better time zone differences and with English being the accepted “business” language, we offer less language and interpretation issues. Janet  Taylor-Hall, CEO of Cognia Law summarised it very well in a recent interview when she said, “SA has the advantage of a near shore location in an offshore delivery location”. Here is the major cost factor. Global statistics tell us that 70% of the cost of a case is taken up by review. It is imperative to do everything possible to reduce that cost but maintain quality and deadlines. 

Reverting to the question which formed the title of this post along with my brief response, what is needed to make SA the global centre for managed document review? Probably not that much I would suggest. Clearly, these companies must continue to do all they can to “fly the flag” and attract this work from overseas. Secondly, SA based law firms and eDiscovery service providers should use them. This process is not just for the overseas market. Outsourcing this aspect of the review instead of bumping up overheads with hires and contract staff and all of the hassle and expense that goes with it makes so much sense. Finally, my old “chestnut” - amending our Discovery Rules to incorporate eDiscovery together with the implementation of POPIA will generate more work here along with more reasons for work to be retained here.

The short answer became a long one. As always, I hope you enjoy the read and do not hesitate to contact me for help and advice.