Two Heads Are Better Than One
John Allen Paulos, an American mathematician, famously said, “Data, data everywhere, but not a thought to think.” The esteemed professor made this quote in 2007; however, 90% of all the data in the world has been created over the last two years. With the Internet of Things now entrenched in our daily lives, and more than a quarter of the world’s population active on Facebook and five billion searches per day being conducted on the web, data management is a monster that truly keeps on growing.
For litigation department heads, allocating internal resource to tackle eDiscovery which, thanks to globalisation and digitalisation, is likely to involve cross-border issues is simply unrealistic for most. Even if budgets stretch to cope with the task, expertise in domestic and international privacy and data protection compliance and the ability to protect data from external breach may not be.
Outsourcing eDiscovery processes such as document review provides several advantages to a legal practice, whose staff are already struggling with high workloads and billable targets. Statistics revealed by the charity LawCare highlighted that calls from lawyers to its helpline have reached a ‘record high’. And law firms cannot necessarily rely on their IT departments; the increase in the amount and sources of data and the accuracy required in conducting Technology Assisted Review (TAR) means document review is becoming increasingly specialised.
Justifiable management fees
No law firm or in-house legal team selects an external provider lightly, especially when it comes to eDiscovery support. And for good reason. When Peter McLaughlin, an Engagement Manager at Review Management Services Fios, Inc looked closer at a review of 100,000 potentially responsive documents in which the legal team had stated the review was 99.7% accurate, and all responsive documents had been provided to the requesting party, he found serious flaws. “Three hundred documents were improperly coded, and several highly confidential e-mails damaging to the case were inadvertently produced to the requesting party.” Mr McLaughlin goes on to state:
“Most of these mistakes are avoidable with the application of smarter review processes, sound technology and more diligent management controls.”
An experienced eDiscovery provider has the reason and ability to invest in the technology required to tackle complex document review projects. Working with a trusted provider who has a track record of producing accurate results means litigation support departments and in-house legal teams can justify their eDiscovery budgets to the Board.
Staying ahead of the competition
Since the 2008 financial crisis, the billable hour is trundling towards its inevitable demise on both sides of the Atlantic. Law firms now face stiff competition, in the form of Alternative Legal Service Providers, boutique practices, and freelancers who can be drafted in and out of departments as project demands require.
Clients are also savvier; with so much information available on the internet, corporates are no longer willing to pay for eDiscovery to be performed in-house, many are demanding this type of work be outsourced to ensure certainty of costs.
Law firms must be more entrepreneurial to grow in this new market. Charging on value rather than time provides an opportunity to negotiate a higher fee based on the money made by the client’s thanks to the firm’s work. Connecting fees with value and being fully transparent regarding costs leads to stronger commercial relationships and long-term commercial clients.
Expertise of the provider
In late 2018, Mike Quartararo, author and widely recognised global expert on eDiscovery argued that although TAR was proven to save costs in discovery, it has not been fully utilised due to a “failure to properly educate the legal populace about the utility of TAR”.
“If you think really about it, the TAR process is no different than legal practice and document review 50 years ago when the lead lawyer on a case propagated her knowledge of the facts of the case to younger associates or paralegals.”
Mr Quartararo states a key reason law firms are reluctant to use TAR is that partners argue it is not “entirely reliable”.
By outsourcing document review to a trusted provider, partners and litigation support managers can be confident the discovery produced when following TAR is accurate. A skilled provider will have day-to-day involvement with the case team, providing specialism and experience not available in-house. Rather than be viewed as competition to the litigation team, eDiscovery providers enhance the knowledge and prestige of the department, adding additional reputational value which secures more instructions.
To find out more about outsourcing document review, please contact our team on +44 (0)20 7940 4799 or email firstname.lastname@example.org.
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