What's New in Doc Review?

A look at novel approaches and recent technological advancements for legal document review in 2010

Daniel Kavan, Kroll Ontrack

Every year, the amount of electronically stored information increases significantly. More and more business communications are conducted using e-mail and other electronic communication tools. Research by the Radicati Group estimates that a typical corporate email user sends and receives about 110 emails per day and this is projected to increase to about 119 by 2014.

The need to review documents, including electronically stored information such as emails, attachments, spreadsheets and database files for legal cases, regulatory inquiries and internal investigations is ever-present.  But with the soaring volumes of Electronically Stored Information (ESI), the task is becoming increasingly challenging.  As a result, this means that those tasked with the demanding duty of managing document review exercises need to consider utilising new ways of approaching such projects to reduce the cost, time and burden.

This need is being recognised by courts around the world. In England, for example, a new Practice Direction on electronic disclosure was introduced on October 1st, 2010. The direction, which aims to “encourage and assist the parties to reach agreement in relation to the disclosure of electronic documents in a proportionate and cost-effective manner,”  suggests a variety of ways in which disclosure of electronic documents can be conducted both thoroughly and efficiently.  This, on the back of the Jackson Report in which Lord Justice Jackson suggested a variety of ways to reform the litigation system to promote access to justice at proportionate cost.

Automated Workflows

When the volumes of documents to be reviewed are vast, it is clear that a systematic approach is necessary to ensure efficiency and to maintain quality control.   A document review exercise utilising multiple reviewers typically needs someone to define and manage the process and to ensure that quality is maintained throughout. 

Recent advances in technology can make it easier for document review managers to direct the flow of documents and supervise how these documents are reviewed.  Such technologies allow project administrators to visually represent the workflow required in a flowchart designer.  Behind the scenes, the technology converts this ‘design’ into actions that distribute the documents to the appropriate reviewers.   Defining the review process in this manner, instead of using a whiteboard, piece of paper or other method, will allow the review administrator to document the decision process so it can be referenced by any and all administrators in the future, and can also be used as the basis for future reviews.

Who are the right reviewers?  Workflows can be designed such that documents written in particular languages are automatically sent to those reviewers with the necessary language skills to perform the review.   Another approach might be to automatically detect documents which have words suggesting the document may be privileged and route them to experienced privilege reviewers.

One major benefit of workflow is the ability to validate the consistency of review decisions using an automated document check-in system, which reduces the time spent on quality control throughout the document review process by ensuring documents are accurately categorised. Workflow technology makes reviewers’ lives easier by allowing them to check out documents and return them to the workflow process. Documents can be returned incomplete, flagged for a manager or checked-in as complete. If a document meets the check-in criteria, it can then proceed through the workflow to the next applicable stage. This automated document distribution and check-in process ensures the highest level of reviewer productivity and the lowest amount of reviewer downtime, resulting in a faster and more cost-effective document review.   
 The technology also has the ability to check reviewer work as they review documents and can provide a variety of summaries and detailed views of the review progress using a series of real-time graphical reports.

Such technology reduces the time that supervisors spend manually assigning and distributing documents and similarly reduces the time reviewers spend waiting for documents to be assigned to them.    It also allows those supervising the exercise to spend their time on more meaningful tasks such as managing more substantive aspects of the case.

Letting Technology Make Decisions

New document review technologies can go further than just managing the workflow of the human reviewers. Intelligent review technology is now also able to make decisions about the documents themselves.   Intelligent Prioritisation analyses documents reviewed by human reviewers based on an analysis of a large enough sample set of documents.   It then detects the patterns in those documents marked relevant or responsive by the reviewers and based on conceptual similarities, finds other documents which have not yet been reviewed, that are most likely to be relevant or responsive to the review.
These documents are then pushed to the top of the automated workflow queue, making sure that the most potentially relevant documents are reviewed first, helping lawyers build an effective case strategy earlier.

Documents least likely to be responsive, on the other hand, will end up at the bottom of the queue, and depending on the circumstances of the case, may never have to be reviewed, saving valuable time and cost.

Less Costly Reviewers: Legal Process Outsourcing

As helpful as these technologies are, in most cases, they are unlikely to completely eliminate the need for humans to do at least some portion of the review.  However, at times it can be hard to find the resources for a document review - good reviewers can be hard to find at short notice and scaling up office space with the right technology can be challenging and time-consuming. 

Legal Process Outsourcing (LPO) can help and is becoming an increasingly common way of approaching document review.   More and more law firms are now using contractors to provide review teams and much of the time these teams are located offshore in other jurisdictions such as India and South Africa, to help control the costs of document review.Online document review tools make this possible.

Assuming quality control and security concerns can be met, outsourced document review can provide a compelling and cost-effective alternative to using local lawyers, trainee solicitors or paralegals to conduct document reviews. It is increasingly common that employment of LPO services are occurring in cases where law firms utilise outsourced document review on their own initiative.   Whether this is a response to pressure from their clients or a savvy and modern approach to managing the costs of litigation, it provides corporations more potential for their legal budget.

Conclusion

Disclosure is widely considered the most expensive part of litigation, and document review is usually considered the most expensive part of a disclosure exercise or regulatory investigation.   As the volume of electronic communications and documents grows, it is imperative that legal practitioners take advantage of technology in order to make document reviews manageable, efficient and proportionate.  The days of lever-arch folders and bulging file cabinets are long gone and sophisticated review technologies ought to be considered to assist in reducing the burden and expense of document review exercises whilst providing early case insight and competitive advantage.

Daniel Kavan is an Electronic Evidence Consultant at Kroll Ontrack's office in London.

Disclaimer
This document is neither designed nor intended to provide legal or other professional advice but is intended merely to be a starting point for research and information on the subject of legal technology. While every attempt has been made to ensure accuracy of this information, no responsibility can be accepted for errors or omissions. Recipients of information or services provided by Kroll Ontrack shall maintain full, professional, and direct responsibility to their clients for any information or services rendered by Kroll Ontrack.