The word “addressing” in my title is used here as the opposite of “ignoring”. As with the use of technology, you cannot dismiss the idea of outsourcing document review without finding out who does it, how they go about it, and at what cost. Is your own document review as good as you like to think? Are your “ethical” concerns just a convenient way of closing your mind to the subject? And is not cost-reduction part of the ethical responsibility? It may in fact not be right for you and for your cases, but you don’t know that without finding out about it.
Like the use of accelerated review tools (see Having the Acuity to determine Relevance with Predictive Coding), the outsourcing of document review raises professional and ethical issues amongst lawyers, particularly those who have been brought up to consider it their duty to read every document. The question comes up in my discussions with law firms, and we now have the launch of the latest US State bar ethical code on the subject. Other factors also make it topical.
To save you reading the rest of this, I will say right at the top that the delegation of work of this kind is, as a practical matter, the only way in which many law firms are going to be able to review large volumes of documents at a price which the clients are willing and able to pay. If you have document volumes of any appreciable size, you must at least consider either using technology or outsourcing the work, and probably both.
If you quibble with my unequivocal use of the word “must” in this context, then here is a simple exercise. You presumably know what it costs to review any single document. You don’t? Well, open a file (paper or electronic) and work through it for 60 minutes, recording your decision as to each document’s relevance (and perhaps its issues) by whatever means is convenient to you. At the end, count the number of reviewed documents and divide your charging rate by the result. Multiply that result by the total number of documents to be reviewed.
You will already have incurred a cost in collecting these documents and, unless you are putting your decision directly into an electronic system of some kind, you have yet to translate that decision into usable form. There are all kinds of other costs as well (and technology offers many time-saving short-cuts – not just the predictive coding referred to above, but de-duplication and finding near-duplicates, for example). Ignore all that for now, because our focus here is on review time per document, however the document set was arrived at.
Is the resulting cost proportionate to the size of the case? Will the client pay the bill, and will the costs be recoverable if you win? Have you actually got the resources for this, and is it the best use of the resources you have? Do you trust your own staff, fine people though they are, to be consistent in their decisions all through the exercise? How will you check their work?
Let’s just focus on the last two points, because the starting point of this article was quality not cost. The primary ethical question which arises when work is outsourced is whether the lawyer responsible for the case can be satisfied that the job has been done properly when it has not been done literally under his eye by his own staff. The question is being considered by many US state bars, and whilst we may not be keen to embrace every aspect of US electronic discovery, there is no difference in principle in the ethical duties of the lawyers. The latest draft rule comes from Virginia and I point you to this article and this one merely because they summarise the main issues. Consider this passage:
[o]utsourcing affords lawyers the ability to reduce their costs and often the costs to the client to the extent that the individuals or entities providing the outsourced services can do so at lower rates than the lawyer’s own staff. In addition, the availability of lawyers and non-lawyers to perform discrete tasks may, in some circumstances, allow for the provision of labor-intensive legal services by lawyers who do not otherwise maintain the needed human resources on an ongoing basis.
Where have you recently seen a reference to legal work being broken down into “discrete tasks”? It is one of Richard Susskind’s predictions in The End of Lawyers? and in much of his writing and speaking, part of his warning that the conventional models of legal practice are not adequate for the world we face now.
Unlike cost, ethical considerations are non-negotiable. A lawyer and his client may together weigh the risk of a particular course against the money to be saved by following it, but a lawyer owes duties to the court and to his professional body which cannot be traded in this way. So far as I am concerned, in the absence of an express rule prohibiting outsourcing, and provided that the client is fully involved in the decision-making, the ethical question comes down to a single issue: can you satisfy yourself that the work is being done properly?
Specialist subject: the bleeding obvious, you might say. Not quite. Outsourcing is not a pure ethical issue like taking clients’ money or coveting thy neighbour’s wife’s ass. It is a commercial matter with an ethical dimension. I emphasise this because I half wonder if some lawyers are using ethical considerations as an excuse for not examining the subject. The economics are easily weighed up – do the sums suggested above and then approach two outsourcing companies and ask them to quote for the same exercise. If you have been honest in your calculation, it is probable that there will be a large margin in your favour if you go with the outsourcers.
Two of the points which I listed above were not economic ones – will your own staff be consistent in their decision-making and how will you check their work? The only document review establishment which I have actually seen is the one set up by Epiq Systems at their new offices in Old Jury – I was a member of the panel which helped launch it in July – see Epiq launches European document review service.
In charge of Epiq’s document review service is Laura Kibbe, formerly in-house counsel at Pfizer with responsibility for managing discovery both in-house and in the hands of external lawyers and providers. Get her to give you a ten minute run-down on how she staffs and manages the service, and you might then re-evaluate the question of ethics. I am guessing here, but I suspect that the quality – of staff, of supervision and of quality control – is higher there than your own firm will manage, even before you take the costs into consideration. When I say “I am guessing”, I speak as one who used to earn his living cleaning up data which had been provided on exchange after disclosure, so my guess is an informed one.
Epiq is not the only company offering services like this. At the end of September, Project Counsel announced a link-up with UNIFIED (business tag-line “Outcome Based Outsourcing”) – see UNIFIED and Project Counsel Launch eDiscovery/eDisclosure Document Review Center in London . I am not a user (obviously) but I know both Greg Bufithis of Project Counsel (also of The Posse List) and Noel Kilby at UNIFIED. They are getting repeat business on projects big and small.
Is this just for big cases? You judge size in this context by the relationship between the scale of the task and the resources available to you in-house. Many firms would have to turn down (or screw up) big projects if they could not send some of this work out.
I was involved in a review exercise last year that saw the average document review cost (done in house) coming out at £2.40 per doc, around the same time I was involved in another case where the client had refused offshore review (priced at around £0.60 per document) because they didn’t want to send their documents outside the UK. It occurred to me that there must be a halfway house where law firms can benefit from both the benefits of offshoring (low cost, fixed price) and from doing the work internally (control, quality). So I thought I’d set up a paralegal agency which employs paralegals and pays them an hourly rate whilst their services are charged at a fixed rate per document reviewed.
I wrote two articles on this subject at the turn of the year (see UK interest in outsourcing on the rise and Outsourcing reaches the business press – so the clients will read all about it). The gist of those articles is that outsourcing really means passing parts of the job to others who can do it more cheaply than you can. That implies that you know what it costs you to do that component of the work and have satisfied yourself both that the general quality of the work is high and that there are mechanisms in place to check your particular job. I am far from blind to the ethical implications, but one’s ethical duty includes ensuring that your client’s work is done cost-effectively. One could construct an ethical argument to the effect that failing to investigate alternatives like this is itself a breach of duty; I will spare you that because the business case should be adequate incentive. I am not saying that you should delegate your document review, still less that you should do so with one of those named here, who are chosen simply because I know them personally – you can make your own mind up both as to the principle and as to the choice of contractor. But do approach it (and them) with an open mind.
The expressions “quality assessment” and “sampling” are rather like the word “process” – they are chucked about by insiders as if they had an absolute meaning. How do YOU satisfy yourself that a document review has been conducted properly, whether it has been done by your own staff or outside? A document review delegated to the right people should be done more quickly, as well as more cheaply, than the equivalent exercise in-house. That ought to leave you with both time and money in hand for your own checks.