Controlling eDiscovery Litigation, Arbitration and Investigation Review Costs When Emerging from a Recession

As we attempt to clamber out of recession, the increased pressure corporate clients are under to achieve more for less, might lead to expectations that their law firms carry out what is perceived to be one of the most expensive parts of the legal process in the most efficient and cost-effective way. Unfortunately, law firms and their clients don’t always see the world in the same way.

Experience from previous recessions tells us that, in the haste to hold on to jobs, one of the first casualties within some law firms might be delegation. In other words, more senior lawyers are likely to hold on to document review work that might otherwise have been delegated in order to keep themselves busy and billing. In some cases, clients might benefit in that some law firms may discount the senior rates to compensate. But others may not and the client ends up paying inflated rates for carrying out important, but more junior tasks.

Time for the legal profession to follow the lead of pioneering law firms

By varying degrees, many leading law firms by now have accepted, adopted, and even embraced the concept of outsourcing aspects of legal document review. An experienced and properly instructed review team is more than capable of conducting a first-class document review that, in most cases, is on par with if not greater than the review conducted by a team assembled and managed by a law firm.

That being said, there are still many law firms that prefer to carry out document review work with their own internal teams – often comprised of high priced lawyers, junior associates, trainee solicitors and paralegals. To a law firm, whilst being tiresome at first glance, a document review can be extremely lucrative work (for clients, read “expensive”, even if carried out at one of their lower cost offices).

The comparable price of the work being undertaken by Integreon, or one of our fellow Alternative Legal Service Providers (ALSPs), is in fact incomparable! Generally, law firms are not able to match the unit cost of conducting the review. The reality is, they cannot get anywhere near the cost, nor match ALSPs in terms of scalability or turnaround time to commence the review ALSPs will also have ready access to a wealth of specialised talent including individuals with foreign language review skills.

The recent events and swift change to a work from home setting might cause additional strains for law firms. Whereas previously they may have assembled their document review teams in a large room within the office, today’s work patterns mean that instead of a senior lawyer sticking his or her head around the one door to supervise the team, they will now have to learn new technology and come up against several virtual doors to check on each member of the remote team. This will add to the administrative costs of conducting the review and cause an element of frustration to the senior lawyer who certainly has better things to do.

Technology will assist

In recent times, technology has played a huge part in helping to reduce the cost of document review. Mentions of concepts such as TAR, CAR, CAL are now quite common in our law courts – and have even found their way into court rules. Forward-thinking ALSPs and law firms have embraced such technology and, rather than seeing it as a threat to their services, see it as a major enabler to delivering their services in a seamless, secure, cost-effective, and accurate manner. The trick is to acknowledge how to get the best from technology and be mindful as to which parts of the review it cannot usefully be applied. ALSP review teams will often have worked on many projects using predictive coding and analytics and can recognise when the technology may not be producing the desired effects, thus providing invaluable feedback to the legal team and avoiding potentially expensive workflow errors. They will also have experience working on many different review platforms and can accommodate the firm and/or its clients’ preferred solution.

ALSP can also stand for “Achieving Lower Specialised Pricing”

A mature and well established approach for reducing legal review costs is to seek the assistance of an ALSP. It is important to note that ALSPs, Integreon included, do not practice law, nor do they dispense legal advice. It will always be necessary to have a law firm (or corporate legal department) instruct and supervise the review. The ALSP, however, will be responsible for the day to day management and supervision of the review team. The client will be responsible for drafting the review protocol (briefing note against which review decisions will be made by the team), calibration exercises (where the ALSP will ensure that their understanding of the instruction is in tune with those instructing), and structured sampling of the resulting work product. These measures ensure that the instructing team (law firm or legal department) remain firmly in control of the document review exercise, yet allow the ALSP to ensure that the client will benefit from tried and trusted, efficient processes and procedures.

To pick up on a point made in passing above, it is possible that the accuracy of an ALSP review team may be even greater than that of a hastily assembled law firm review team. These resources will often have other demands on their time and will not be able to dedicate a number of full days to the document review. This can lead to challenges when working to tight deadlines. Often, document review is relegated to late in the day if other pressing client work has to be dealt with or additional, less experienced resources are drafted in at the last minute to try and complete the review which can increase the risk of errors and inconsistencies.

One of the benefits of an ALSP review team is that they will be completely focused on the review with no outside distractions. They will also have tested and established quality control (QC) processes with dedicated QC team members whose sole responsibility is to ensure consistency and accuracy across the whole review population.

Cost and productivity certainty

At the outset of any document review, the ability to predict the overall cost and number of review hours required is imperative. ALSPs will have a vast wealth of experience gleaned from working on thousands of document review projects along with solid metrics to provide accurate costs and time frames. They will have also faced challenges arising from difficult document types (chat data, complex spreadsheets, audio files for example) and will be able to advise on best practice for reviewing them efficiently and accurately.

Recession ready

Many of our clients will have experienced and weathered previous recessions, but it may be the first time for some. Integreon has been here before and we completely understand the additional strain on clients needing to fight legal proceedings and conduct investigations in an environment where funds and resources are scarce. Consequently, when legal departments and litigation teams are asked to take on a greater workload, but with recruitment freezes and even reduced team sizes in place, we are happy to assist with document reviews (of any size) wherever we can.

Authors

Vince Neicho

Vince Neicho

Vince joined Integreon in June 2017 as an expert legal solutions consultant, with a focus on law firms and corporate legal departments engaging in e-disclosure, e-discovery and document review. Prior to joining Integreon, he was with Magic Circle law firm Allen & Overy for 42 years, where he set up and led their global litigation support / eDiscovery teams. In this role, he assisted key clients from many sectors with the design of innovative, defensible systems, processes and solutions to meet their discovery and document management obligations and introduced the firm to outsourced document review, some 10 years ago.

Clare Chalkley

Clare Chalkley

Clare has worked in the legal industry for almost 30 years and spent 25 of those at Clifford Chance as their Litigation Support Manager. She worked with lawyers and clients across their global network managing the eDiscovery and document review process for litigation, arbitration and regulatory matters. She was also instrumental in implementing outsourced document review in the London office. Clare joined Integreon in 2019 as an e-discovery and document review subject matter expert and has provided training and consultancy services to our clients. She also serves on the board of ACEDS (Association of eDiscovery Specialists)