TIBURON WHITE PAPER How Innovation is Shaking Up the Traditional Legal Document Review Process Law firms today operate in a dynamic, competitive and unpredictable environment with This white paper will discuss how clients demanding more value for their budgeted expenditures. The changing landscape law and managed document review requires practice managers to develop new ways of thinking and acting. Nevertheless, firms can use digital technologies to many still rely on existing processes that consume a large amount of a lawyer’s time. This basic model proved to be very worthwhile for decades but now must be called into create a cloud-based review center question in the face of technology that improves efficiency and lowers costs, which has and reap all of the advantages been brought to bear on countless industries. inherent in using remote document review attorneys. The traditional legal document review process is one area that is ripe for disruption. It’s a high volume and low value discipline that involves expensive overhead costs by law firms and a significant time commitment from the professionals they employ. With the increasing prominence of allowing employees to work remotely, the legal industry has been slow to adapt due to confidentiality concerns related to the documents being reviewed, as well as accountability concerns related to the oversight of document review attorneys working remotely. [email protected] +1 (602) 295-7405 TiburonCloud.com The Issues with Legal Document Review Today Document review is often the most labor-intensive and expensive stage of the litigation process. On a daily basis, a document reviewer may examine hundreds of sundry documents, such as memos, letters, e-mails, PowerPoint presentations, spreadsheets, and other e-documents, to determine whether the information should be turned over to an opposing party in response to a discovery request.1 Due to advances in technology, most documents reside in computer databases in electronic form. Therefore, document reviewers no longer manually sift through paper documents but spend most of their days in front of a computer screen. With the advent of e-discovery, electronic data is now subject to discovery, expanding the scope of the document reviewer’s role.2 There are many issues that make employing reviewers to code large quantities of documents consistently and correctly in order to provide high-quality legal document review services at an affordable price difficult. These include the following: CONFIDENTIALITY Because lawyers are responsible for both executing confidentiality and abiding by the evidence-based attorney-client privilege, there’s no room for error in the legal document review process.3 Reviewers can be responsible for handling a wide range of classified client information, including departed employee computer files, business projections and supplier information. The level of confidentiality a client requests is largely dependent on the subject matter, with the highest level of client-confidentiality typically including information that’s potentially damaging to their reputation. Due to these sensitivities, reviewers not only sign NDAs, they are required to take extra precautions for confidentiality. Despite these restrictions, legal document reviewers are often lax on their obligations and use devices or other methods to share information that violate their confidentiality agreements, potentially causing irreparable monetary and reputational damage to their employers. EFFICIENCY AND ACCOUNTABILITY The difference between a thriving law firm and a law firm that fails can come down to one thing: efficiency.4 Legal document reviewers are generally under the honor system for how long they work, which means they must be self-disciplined for maintaining diligence and accountability. Clients often closely weigh billed hours against value gained and question the invoices they receive based upon this simple metric. For professionals, where tracking billable hours is critical and can be challenged in court, it’s important to carefully manage timekeeping, work output, and the results to give credibility to invoicing and client engagement. Among the obstacles for the widespread use of remote document review are the overall challenges for managing a remote workforce. When remote document reviewers are distracted at work and don’t effectively engage in the work at-hand, firms are faced with defending hours billed. To manage reviewer engagement and the quality of reviewer work-product, document review teams use system analytics to measure database activities, like login time, documents opened and document coding. Additional attorneys perform second pass document review sampling as part of quality control processes that are used to provide additional information on the activities of document reviewers. Analytics of database activity and quality control processes represent cost spent to indirectly verify attorneys are adhering to remote document review work policies in the first place. Database measurement is limited, since it doesn’t directly reveal if remote document reviewers are distracted by activities like cell phone use, talking to others, if other applications are being used in parallel, or who is actually accessing the document database. 1 Kane, Sally. “What Does a Document Reviewer Do?” TheBalanceCareers.com, Updated April 15, 2019 2 Ibid. 3 Professor Giesel, Grace, M. “Difference Between Confidentiality and Attorney-Client Privilege.” Lawyerist.com, March 28, 2019 4 “Efficiency Killers in Your Law Firm.” Law Technology Today, December 7, 2016 [email protected] +1 (602) 295-7405 TiburonCloud.com PHYSICAL OFFICE CAPACITY The legal document review market is highly competitive. As a result, law firms have struggled with balancing the need to keep the costs to clients as low as possible while providing a quality service. Most document review work is done at a brick and mortar location such as a law firm office, a corporation, or the site of a third-party managed document review provider.5 A document-review assignment can last almost any duration of time, from three weeks to three months or longer.6 One week might require an office space with extra capacity, and the next might require little more than a small room. Housing a large number of reviewers over an extended period of time or leasing additional capacity and IT infrastructure that’s not consistently utilized can add a fixed cost that is a drag on the bottom line. Situations arise where firms have the opportunity to perform more work for clients but are hesitant to add leased building capacity because of the inconsistent nature of the work. Previously, the only option was to outsource the work; however, if a remote work force is viable, it opens up additional options. DOCUMENT REVIEW ATTORNEY RETENTION Adding to the burden of maintaining expensive physical office capacity, document review attorneys are paid for their review of documents, not for their commutes each day to-and-from facilities. Commuting not only costs them dollars, but time spent that is lost instead of earning income. Elimination of commute time and fuel consumption from the workday has wide implications. Moving office- based work to remote office work even a few days a week can have significant value for workforce retention, reduction of environmental impact and community traffic congestion. Remote work is most attractive to document reviewers when they are able to control the daily work schedules, access work immediately and during all hours of the day and are able to maximize their work output while maintaining work life balance. SKILL SHORTAGES NEARBY To minimize cost, contract attorneys or paralegals are often employed for legal document review. In high-demand markets such as Washington D.C., New York, Chicago or Los Angeles, the availability of skilled document reviewers is severely constrained. For any document review position, solo practitioners looking for extra income or new law school graduates who have not yet secured permanent employment are among the most frequent applicants.7 These types of workers often live in low-cost rural areas and have difficulty commuting to a central urban location each day or are unwilling to do so due to the high cost of commuting. This is especially true when factors like inclement weather and poor parking availability come into question. Document reviewers with special skills such as foreign language, or expertise in specific areas such as the oil and gas industry or patent litigation, are also often required yet hard to find. COST The legal document review market is highly competitive with low-cost labor markets participating. As a result, law firms have struggled with balancing the need to keep the costs to clients as low as possible while providing a quality service. Some firms contract a large swath of the business to document review providers, often headlined by large multinational consulting firms.8 The alternative is to use firm-branded associates to sit in front of a computer and sift through documents for 8 to 12 hours a day with all of the associated fixed overhead costs including office space, IT infrastructure, electricity and administrative support, that increase with the rate of inflation. The average fixed costs of a brick and mortar location in the U.S. averages a staggering $26,423 per staff member per year. (source Verificient Inc., market study). 5 Evans, Brett. “Doing Document Review Right.” Above the Law, December 3, 2018 6 Ibid. 7 Hayashi, Emiko. “Should You Take a Document Review Job?” ABA Group online 8 Evans, Brett. “Doing Document Review Right.” Above the Law, December 3, 2018 [email protected] +1 (602) 295-7405 TiburonCloud.com The Solution: Remotedesk Cloud Review CenterSM Technology Digital remote identity authentication It becomes easy to imagine why digital document reviewers prefer a workplace that begins and and technology that verifies document ends in the home — wherever home might be. Instead of a long commute to a remote office reviewer identity and compliance with building, it’s a short walk with a freshly brewed cup of coffee down a hallway.