E-Discovery & Document Review From a Different Perspective

Note: Shawn DeHaven is a Counsel On Call attorney and team leader and has offered to post his thoughts on the discovery process and working with Counsel On Call here. This is his first entry. To learn more about Shawn, please see a profile piece in Counsel On Call’s newsletter from last summer.

I received an email from a colleague recently with a link to an ABA article titled, “Paralegal Job Can Make Career Sense, But Document Review Is Dubious, Experts Advise.” Nothing like a great headline to get your spirits up.

The article suggests document review work should be avoided by new law grads so much so that, in some instances and if given the choice, it is better for said grad to take a paralegal job in lieu of a document review job. I would have acquiesced to the point since, on its face, the article appeared to be written with the new grad as the target audience… but for the fact that one linked blog attacked the industry as a whole.

The blog suggests that document review work is “totally meaningless” and describes it as “walmart for lawyers.” Continuing, the author states no actual lawyering is involved, that all one learns are some new legal concepts, results in the amassing of no new skills, and suggests “…it's valuable work for the client that we never meet and who doesn't give a ___ who we are…” I can only infer from the author that if one is not a litigator, they should not be called a lawyer.

I would like to thank all of the authors, the scores of bloggers and others who proclaim the professionally detrimental characteristics of document review work. I appreciate the categorization of it being dead-end and worthless work. The more negativity and misinformation there is out there means less people will be drawn to the work… and that keeps those of us who do the work employed.

All kidding aside, there is a dearth of commentary addressing the positives of discovery work. There are certainly scores of contract attorneys who don’t do such work, as my colleagues at Counsel On Call can certainly attest. But I’m sticking to what I'm currently working on, which is discovery work, and rare is the article or blog written by an attorney proclaiming how great the work is; maybe my team and I are different and actually see the work in this light.

I am an attorney. I have represented clients in court. I have provided legal guidance to companies. I do document review and discovery work. And I am happy.

How is this possible, the cynic might ask? Consider this: an attorney working on a discovery project has the unique opportunity to learn something new -- the use of technology in litigation. I posit that if all one learns from working on a document review project is to press ‘Shift 5’ all day, then one was probably not open to the work in the first place. That is not a bad thing. It’s okay, the work is not for you. As I see it, there are two different types of people, those who embrace the task they have been assigned, take pride in the work they do, and attempt to glean some big picture mastery… and then there is everyone else. It's kind of like that Jimmy Buffett song, “It’s My Job.” It's how you look at, it's about perspective.

Back to technology…. On each discovery project I’ve worked on I have been moved from regular reviewer to the quality control team because I identified ways in which the process could be improved through the use of technology. The full use of these tools allows the process to be a puzzle, a game of sorts and a challenge – every day is a little bit different than the last. It is challenging to learn about new technologies and shortcuts and how they can assist the process. To me, this is fun; and now that I have found my niche at Counsel On Call as a team leader, I enjoy going to work every day which, I have heard, is a rare thing for an attorney. But more importantly, I’m providing expertise and value to my client, and that is a big part of why I became a lawyer in the first place.

Early Case Assessment Provides Bang For Your Buck

It’s been nine months since my Review less data, and review it faster post -- a lifetime in the e-discovery universe -- so I thought it time to brush off the dust and revisit the post's underlying principles.

First, let me note that I think in-house decision-makers have become more informed consumers of all things e-discovery since that post (and others) was written. More people understand the basic concepts around reducing legal costs and more people know the right questions to ask. So while I agree with much of what what was written on the '3 Geeks' blog regarding the question “if clients are smarter now,” I believe that the overall knowledge level within the in-house community has increased.

That being said, I have been involved in several discussions with potential clients recently and when I ask questions on how they currently handle the e-discovery portions of their cases, it has often been apparent that a key component to reducing costs has been overlooked (or at least has not been the focus of cost-reduction efforts). It is still common to hear of strategies focused on the hourly rate of the attorney reviewer. While the cost savings from a law firm attorney to contract attorney are certainly substantial and save big dollars, the cost savings of a contract attorney versus another contract attorney is not significant in the overall cost of litigation. In fact, it is not uncommon to see the lowest-cost provider produce a result that’s higher in total costs due to the layers of review required to ensure a consistent work product.

A real opportunity to save major dollars in e-discovery is through an effective early case assessment (ECA) strategy. This requires implementing a repeatable and defensible process that is targeted toward finding relevant information and safely eliminating non-relevant information. Through advanced ECA technologies, one can filter out clearly non-relevant email domains from a review, limit the universe of reviewable documents by date parameters, and most importantly apply AND TEST well-crafted key term searches to the collected data. The importance of comprehensive and effective key term searches cannot be overstated. Done correctly, it can consistently reduce the amount of data to review by 85% or more.

Well-crafted key term searches are not a one-time task. Rather, effective (and defensible) key term development requires application of key terms, sampling of the results of those key terms, and expansion and narrowing of the search terms. It is critical to properly document every step of this process so that you can demonstrate the good faith efforts in targeting relevant information and eliminating clearly non-relevant information.

A little bit of Early Case Assessment can go a long way. This became apparent in one of our year-end reviews with a client in which we compared 2009 to 2008 numbers. It did not surprise me at all that we handled twice as much data for the client in 2009 versus 2008. The client simply had more litigation in 2009. What popped off the page was that despite this significant bump in volume, we reduced costs by almost 60%. That’s mainly because we implemented an early case assessment protocol for all the client’s matters, which not only reduced the number of hours our attorneys spent reviewing documents, but sliced the client’s overall technology/review software expenses as well, saving millions of dollars over previous years’ expenditures.

So while application of key terms prior to review may not always be possible in a matter, the principles of early case assessment are. Spending a few hours on the data prior to batching for review can ultimately save significant dollars. There are several great ECA tools on the market – including a couple of new ones we’re experimenting with – and the costs are comparatively small. And if you’re looking for some bang for your buck, ECA is a great place to start.

Speaking of ECA, our friends at Clearwell posted an entertaining video today (it’s April 1, lest we forget).

Busting Myths With Our Shoes

A recent National Law Journal article on the current market for contract attorneys perpetuates some unfortunate misconceptions and generalizations about the practice, the attorneys who choose to work this way, and companies that assist them in identifying opportunities with law firms and corporate legal departments. The article really got my blood boiling.

There’s little doubt that the increasing volume of electronic document review work, coupled with off-shoring and a challenging economy, has led to downward pressure on rates and less than optimal working conditions in certain markets. But to write, as Ms. Kay did, that all contract work consists of "low-level document review" at hourly rates of $30-35 an hour under deplorable working conditions? That is just simply wrong, as is the suggestion that contract lawyers are, as a group, both discontented and without other career options.

We work every day with in-house departments and law firm managers who seek creative solutions to managing a host of complex issues while controlling costs. Our clients are seeking assistance in all practice areas, from managing EEOC investigations to negotiating complex contracts to drafting appellate briefs (and everything in-between). E-discovery has also provided many flexible work options for our attorneys, and our clients receive great value when these attorneys continue to work on the case as it proceeds. It is important to note, however, that rather than “settling” for temporary assignments, our attorneys have made an active decision to practice in a non-traditional way, one that provides more control over their lives and schedules. We have countless attorneys who have chosen to make working with Counsel On Call their career. In turn, we treat them as the highly competent professionals they are.

We have a saying around here: “Put yourself in the other person’s shoes.” We invoke it when dealing with the attorneys who work with us, with our clients and with our co-workers, and believe it helps everyone involved in an assignment feel comfortable and work effectively. We’re fortunate that our clients are also very concerned about work environments and benefits offered to our attorneys, and we never put our people in a situation in which we ourselves wouldn’t work. For these and other reasons, our attorneys are not "discontented” and instead give us rave reviews, continuing to refer other attorneys as both candidates and clients.

While it is unfortunate that certain agencies have treated attorneys shabbily as market pressures increase, it is unfair to suggest, as the article did, that all do.

NOTE: The National Law Journal ran our letter-to-the-editor response to the article on Jan. 26.