Posted on: November 10, 2017in Blog
What You Need to Know About Managed Review and the eDiscovery Process
With the explosion of ESI, the costs associated with document review have increased exponentially – which is why firms have been looking to identify ways to make this workflow more efficient and less expensive. With all the complexities that go into planning and executing a document review workflow, many organizations have been realizing the benefits of involving a project manager in the process to oversee their legal teams. Known most commonly as managed review, the project managers serve as experts in the industry to help you maintain an efficient workflow to give you additional time to prepare for other aspects of the case.
D4 recently sat down with an eDiscovery project manager expert, Kalyn Johnson, and asked her a few questions about the managed review process to give you a better understanding of how this workflow can help you.
1. At what point in the eDiscovery process does managed review come into play?
Once data has been collected and analyzed, all of the ESI then gets hosted and processed in a database, and put somewhere for review. This is where document review begins, either as a traditional document review or as a managed review. In traditional document review, you would bring in contract attorneys and they would review and classify the documents based on your specifications and protocol. Managed review is where we use a project manager. The whole idea with a PM is for us to handle the hands-on work and the day to day process for the firm. We’re the ones that work with the team and make sure they’re trained properly, perform quality control, communicate changes, and work with the firm to manage the technology part of it. Project managers can make that communication a lot clearer, and keep the team on track so the product that gets wrapped up at the end is completed as accurately and as quickly as possible. Otherwise that all has to be done by someone in-house at the firm – which is traditional document review. A lot of places don’t want to have to deal with the complexities of the project, so they hire a project manager.
2. How do I know what to expect in terms of cost?
We have a formula to estimate the costs involved in document review, but there are a couple of variables in there, and arguably the biggest factor is the rate of review. We do a scoping call with clients to determine what that document universe really looks like in order to make sure we’re providing the most accurate answer possible. A client could have a small number of documents, but if they don’t know what’s in those documents, then the estimate could be way off. So it’s important for clients to take the time to understand their data before jumping into the document review process. The reason that we talk to the client first is because the type of documents we see and how the client wants to evaluate the documents (issues tags, privilege, confidentiality, etc.) affect the rate of review. The longer the review takes, the more it costs.
We want to make sure we give clients an accurate portrayal of what the cost of review for their case looks like. For example, in an anti-trust case, collections are going to be fairly standard. The files will likely be email chains and basic attachments with some excel spreadsheets. In a case with allegations of fraud you can end up with detailed excel sheets and those take a long time, so the rate of the review on that project is going to be much lower. For some patent cases, you can see a lot of diagrams that end up taking less time to review because we are just looking to see if it’s about the product we care about.
The tagging panel and coding protocol can also affect the rate of review. If the team is reviewing documents for privilege, or HIPAA-protected information, or small nuances between issues, that is going to slow down the rate of review. These are perfect examples of why we need to talk to the client first, because we know the questions to ask and can usually get good information to more accurately determine the pace of review, which leads you to a more accurate cost estimate
3. What are some ways you practice quality control, especially for privilege?
Generally some of the things we do include running searches for privileged documents, working with the firms to add to the lists of attorneys and names, and going back to check already-reviewed documents by running searches across all of the data. When new names are found in a rolling production situation, we will then check to see if any produced document contains privileged information from an attorney we just discovered. This way, we can keep privileged information from going out the door. If it’s already been produced, a clawback of that document can be made quickly.
We do a lot of checking on documents to ensure consistency in tagging and that the coding is what’s expected. We’ll check to make sure that the same types of documents are being handled in the exact same way. For example, when working with pharmaceutical companies we almost always have spreadsheets that list drugs and what stage of testing they are in. If the drug being focused on in the case is on it, it’s responsive. We’ll also run targeted searches to be sure that all of those docs have been tagged appropriately under the protocol and production requirements. We want to help our client fully comply with discovery requests, not turning over anything they don’t have to and still turning over everything they are supposed to. The project manager creates consistency with instruction, targeted searches, and conducts broad quality control (QC) on reviewers and the review team as a whole to make sure that concepts are being understood.
4. What do individuals need to know about managed review that could help them?
Individuals that are new to this get scared off by the price. We try to help new clients understand what project managers do – and that the project managers’ role is to truly make their lives easier. You won’t have to worry about the team, about who showed up for work, computer problems, or about how so-and-so is having an argument about food with the person next to them. You won’t have to worry about workflows, privilege searches, making sure no privilege got out the door, if the production is going out the right way, if the team has reviewed for confidentiality, and if everything was checked that needed to be.
A project manager can also assist if you used a TAR workflow to help make sure the documents went through the right steps and in handling documents that didn’t go through the workflow (and why). The project manager is there to assist with everything from workflow control to quality control to managing the people on your team and all the details that entails. This way you have one person that you can call and say “Where are we things? What has the team done?” Each night, the Project Manager provides a report that is the snapshot of what happened that day. Not only does it provide statistics about the review, but it provides descriptions about what types of documents the team saw that day, any issues that the case team should to be aware of, and says where the review stands at the end of that day with regards to deadline (and budgets, if necessary).
5. Where do you see the future of document review headed?
I think technology is going to be huge - a lot bigger and more important. I don’t think humans are ever going to go away, let me say that. But I do think that technology, especially seeing iterations of TAR 2.0 and 3.0 that are coming out in machine learning, is going to become bigger and clients are going to use it more. The humans that are in charge of it need to become smarter. They can’t be scared of the constantly evolving technology, we need to know how to use it wisely and smartly.
It’s all about shifting the mindset, I see it going that way in the future. As law firms and clients become savvier about technology and how it can be used, they become more comfortable with it. The legal world is the slowest to change because they are the most averse to change. After all, the legal world is still the only industry that still uses double spacing after periods. The rest of the world has moved on but the legal field still stubbornly clings to double spacing, even when we’re not using Courier New to submit court filings. (I’m right there in it - double-spacing forever) I see the legal world being slow and a little reluctant to embrace technology, but it will happen. It’s no longer scary or frightening, it’s intriguing – we as a business have to be aware of it and make that shift.
Some law firms are looking for more of a litigation support outsource approach. Some firms are just looking for a point person that they could talk to completely end-to-end, forensics through collections. Law firms themselves are looking for different arrangements to make it better for them. I think that’s all part of it and we are uniquely positioned to be at the forefront of that.
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