Up Next: An E-Discovery Tech Audit?
An audit along the lines of Casey Flaherty’s “tech audit” may also be of value for e-discovery and document review.
The use of common desktop software is so pervasive that it may seem more like an innate rather than acquired skill. A reminder that it is not comes from Casey Flaherty, corporate counsel at Kia Motors who has instituted a “tech audit” to test the computer skills of potential law firm hires. Although he stated in a recent LTN article that the audit he created is “driven by…fear of wasting company money on low value-added work,” it’s likely to have increased the fear quotient on the side of the law firm, whose billable hour, already under siege, is now facing a different kind of scrutiny.
Although his tech audit is controversial, Flaherty is no doubt on to something. Identifying inefficiencies that have a significant impact on legal costs for his company makes sense. It’s bad enough to pay top dollar for someone to learn on the job, but it’s even worse to discover that there’s no learning taking place and you’re paying for the same redundant or deficient work every time. His audit is one way to evaluate what’s going on, and the effort is admirable.
It’s not much of a leap to consider a similar approach when it comes to e-discovery and document review. Here lie cost challenges for even the smallest matters and although tomes have been written on cost-shifting to share the burden of the discovery expense in certain cases, little has been done to scrutinize the applied methods and skills that would ensure the most cost-effective, risk-balanced approach to begin with. There are plenty of ways that a naïve or less than informed case team can go seriously astray.
The field of e-discovery and document review has multiple moving parts now, each of which can have an impact on both the success of the litigation and dollars spent. With the volume of ESI shooting discovery costs ever skyward, technologies applied to collection, processing, hosting, and search and review of electronic information are rapidly evolving and firms that aren’t staying with or ahead of the curve are more than likely costing their clients money and putting them at risk. Manual linear document review, for example—the common review default—now has competing technology-driven protocols in the form of rules-based or predictive coding options that can be much more cost-effective. Managed repositories for hosting documents can provide mega-cost savings for companies with repetitive litigation. Companies will want to align themselves with practice teams that know and understand these options and can implement more forward-thinking workflows.
Document review, of course, is the dollar eater. Whatever the methodology used, firms should be able to justify the approach they undertake based on sound knowledge of the value and risk propositions offered by various alternatives. The ability to measure the precision and recall of a review should be standard in any approach since it addresses both cost and risk. A litigation support team unfamiliar with these terms is not the one you want implementing or defending a production for your matter. While it wouldn’t be reasonable to expect a law firm to have all of the requisite expertise in house, it isn’t unreasonable to expect that they have done their own due diligence in selecting vendors that do.
For a company that is looking for new litigation counsel or is interested in evaluating the skills of their current representation, an e-discovery tech audit would go a long way in providing tangible information about the sophistication of a firm’s e-discovery and document review knowledge as well as its willingness to embrace technological approaches that target both quality and the bottom line. As a QC effort in an existing relationship, it could expose skills gaps such as poor use of review or hosting platforms, quality gaps such as ineffective workflow strategies or ignorance of statistically valid sampling protocols to assess a review effort, or such blatant inefficiencies as (heaven forbid!) printing out ESI and then OCR’ing it to make it “searchable.”
To successfully pass the audit, a case team would have to demonstrate:
1) a robust understanding of the EDRM and basic e-discovery concepts regarding collection, processing, hosting, and production (e.g, data extraction, de-dupe, de-nist, metadata handling, OCR, indexing, and production options) as well as targeted keyword strategies and review methodologies (e.g., rules-based, predictive, manual linear)
2) knowledge of precision and recall and sampling concepts that address review quality
3) familiarity with cost and risk differentials associated with various review options
4) an understanding of what factors would suggest one review approach over another
5) ready access to and a relationship with vendors or other parties with appropriate expertise in each phase of e-discovery and document review.
It’s now impossible to consider any aspect of e-discovery and document review without technology in the picture. Companies would benefit from making sure that the firms that litigate their matters have the requisite skills and knowledge to evaluate defensible processing and review options and execute cost-effective solutions. An e-discovery tech audit along the lines of Flaherty’s model may be just the right vehicle.