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Hiring outside reviewers, or contract attorneys, to perform document review is a well-known practice in the legal field. Document review requires a lot of work - often thousands of attorney hours, and contract attorneys can be a cost-effective solution. However, negative outcomes, attorney experiences, and even legislation show that relying solely on manual review may not be the best option for document review.
The Basics of Document Review
What is Document Review?
A litigation requires all parties to produce some number of relevant documents from their files. Document review is the process of reviewing documents and information to determine which documents must be produced because they are relevant and which documents can be withheld because they are privileged.
What Does a Document Review Entail?
The review process consists of analysis, coding, and decision-making regarding what should be produced and what should be contested or protected.
Who Performs the Document Review?
Document reviewers are often less-experienced attorneys or law school graduates awaiting bar results. They are tasked with reviewing the documents through a computer software program. Reviewers go through each document uploaded to the software and assign/code it based on responsiveness, relevance, privilege, and confidentiality levels. Specific guidelines detail responsive, privileged and confidential documents. After the initial coding takes place, another attorney or group of attorneys (typically those who are more familiar with the case) review the codes and documents for accuracy.
Contract Attorney Perspective on Document Review
Document review can be a good job for attorneys or post-bar students who are transitioning between positions or awaiting bar results. It can also provide more consistent hours and steady income.
Document review work can be uncertain as it is typically done on a contract basis with no exact end date. It can have a negative health impact due to its sedentary 8-hour days and constant computer screen time, and review positions do not present particularly well on resumes when trying to make the leap to a full-time attorney position. This is because many firms do not consider document review to be analytical or exercising pertinent attorney skills. It is seen as administrative work.
Firm Perspective on Document Review
Firms usually hire document review attorneys or post-bar law students because they are often up to 50% cheaper than a more skilled senior staff attorney. However, what many firms do not realize is the cost of hiring these document review attorneys may not be recoverable at trial if their rates are comparable to those of staff attorneys.
In 2016, the use of temporary document review associates billing at normal staff associate rates caused Judge William H. Pauley, III. of New York to reduce the request for attorney fees by $10.3 million in a settlement in the case of Pennsylvania Public School Employees’ Retirement System v. Bank of America.
The judge reasoned the temporary associates were conducting a majority of the document review and discovery work and did not warrant the rates the firm was charging. While acknowledging that the use of less-costly associates or temporary contract attorneys “is common practice,” Judge Pauley stated that he found it “troublesome.” Stating that the practice of hiring a large group of temporary ‘associates’ and billing them at a rate comparable to staff attorneys was unreasonable and excessive.
How AI Can Ease Contracted Document Review Pain Points
Waiving Privilege Through Inadvertent Disclosure
A careless or reckless privilege review may lead to the waiver of attorney-client privilege under Fed. R. Civ. P. 502(b). This was the case in Irth Solutions, LLC v. Windstream Communications LLC.
In this case, Defendant Windstream produced 43 privileged documents, twice. After the second production Windstream realized that some documents had been produced in error. Windstream argued that the documents be withdrawn from production pursuant to a “clawback agreement” that was in place.
A clawback agreement allows any party to the litigation to order the return of inadvertently produced privileged documents without waiving any privilege or protection over the information.
The plaintiff argued that the production of privileged documents was intentional not inadvertent. The evidence supported the conclusion that Windstream’s privilege review was careless at minimum, which did not qualify as inadvertent under the rule.
The court further found that Windstream’s contracted document review attorneys were “completely reckless” and might not have conducted any meaningful privilege review at all. As such, the court did not allow a clawback and the defendant’s privilege was waived.
The AI Fix: The inadvertent disclosure of privileged documents can be avoided with the use of artificial intelligence (AI) technology. As the software reviews each document for privilege, it will assign a score, or probability, that the document confers privilege. Accompanying each score is a reason for why that particular score was assigned. By essentially ranking each document, the software makes it easy for the human subject matter experts to review the documents that are most likely privileged. The creation of this index also reduces the chance that documents are missed or duplicated during the document process, and eliminates clawback situations.
Mistakes and Inconsistencies Among Contract Attorneys
One of the most well-known e-discovery malpractice suits J-M Manufacturing Co., Inc. v. McDermott Will & Emery serves as a cautionary tale in contract document review attorneys.
The primary complaint of this suit is that McDermott failed to appropriately oversee its contract attorneys and that the firm as a whole was negligent in its e-discovery endeavors for its client J-M Manufacturing. This oversight resulted in the inadvertent disclosure of privileged information. McDermott’s production of 250,000 documents included almost 4,000 documents that should have been deemed privileged.
The federal court found supervision and training of the contract attorneys to be severely lacking, and allowed all the documents to remain in the possession of opposing counsel.
By failing to properly educate and quality control their reviewers, McDermott failed their client in proper discovery procedure and ultimately put their own firm at risk.
The AI Fix: Mistakes and inconsistencies are common when using a large team of human reviewers. Fatigue and human error will inevitably enter the equation. Machines, on the other hand, easily avoid these inherently human shortcomings. If an error is found by a subject matter expert, feedback can be easily inputted and the error quickly corrected across all instances.
Inexperienced Contract Attorneys Can Have a Negative Impact on Your Case
When there are several hundreds or thousands of documents at issue in a case plus court-ordered deadlines and consequential penalties for discovery mistakes, it is crucial that everyone working on your e-discovery team knows what they are doing.
A frequently recited legal ethics opinion from the California Bar states:
“An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation.”
Failing to heed this mandate, by hiring attorneys who lack experience or have not been properly trained can be considered an ethical and professional violation of an attorney or firm’s duty of confidentiality, candor, and supervision. To combat potentially harmful inexperience, some states have even held that a firm must obtain informed consent from the client whenever contract attorneys are used. While other states have waived this mandate, most require strict senior attorney supervision.
The AI Fix: Introducing AI into your document review automatically imposes checks and balances. The technology receives input from subject matter experts and continually improves accuracy and precision with a constant feedback loop. The AI software’s ability to review documents at scale relieves the pressure that looming court deadlines can add to a case. These factors greatly reduce the potential of mistakes being made during relevance or privilege reviews.
More Eyes Means Greater Risk
Sharing documents with outside reviewers brings on inherent risks. First, document reviewers are human beings. After hours and hours of sitting in front of a computer, they will get tired and bored. This can jeopardize the quality of their review. Even at their best, document reviewers do not have the same investment in delivering a thorough review as firm attorneys.
Contract attorneys also bring security risks. Outside reviewers must be trained to follow the necessary security procedures to protect a client’s sensitive information. They must also consistently follow those procedures. Maintaining data security is often a difficult enough task without introducing a large number of people who do not share the same commitment to protecting the firm’s client.
Furthermore, the possibility exists that a contract attorney may leak documents to an opposing party or the media. This possibility increases with the number of contract attorneys hired for a review. It is in a firm’s best interest to limit the number of people who view a client’s sensitive information as much as possible.
The AI Fix: Utilizing AI for document review augments the human reviewers’ expertise, allowing them to review thousands of documents more efficiently and more accurately than with regex, or other software tools. This means a firm may need to hire only five contract reviewers to do the work that traditionally would take fifty reviewers. Risk, in turn, is also reduced by having less inconsistencies, less people involved, and less eyes on sensitive documents.
The Trusted Option: Document Review Automation with AI
Contract reviewers can be a great option for firms to use for large-scale document reviews due to their lower cost, and augmenting their talents can provide the best of both worlds: human expertise and oversight with the scale and consistency of AI software. Doing so greatly reduces risk, costs, time, and the need for a clawback.
AI technology augments the document review process by conducting relevance review and first-pass privilege review more efficiently and more accurately than human reviewers. AI technology has proven to reduce the risk of inadvertent disclosure while increasing the speed of review. This then allows a smaller team of highly skilled reviewers to focus their efforts on the harder privilege calls and more substantive decisions. Instead of requiring 50 people, a document review with AI may only require 5 subject matter experts.
Relying entirely on inexperienced or “new to e-discovery” attorneys where improper production often has costly legal and ethical consequences is risky. Adding AI to your process will not only give your firm peace of mind, but it will also save money and time in the long run.
For more information on automating document review, visit here.