Document review – It takes more than technology
10/11/2015

The volume of business data worldwide doubles roughly every 1.2 years1. According to Moore's Law, named after Gordon Moore, Intel’s co-founder, the amount of computing power that can be purchased for a certain amount of money doubles every two years. These numbers should be alarming for lawyers who consider analyzing data using outdated tools. The stakes have never been higher, as regulators worldwide, intensify their scrutiny of companies’ internal data. In the EU, for example, the European Commission recently announced in an explanatory note that it was widening the scope of data that it will search and seize in antitrust raids to include private devices, cloud services and personal data. The EU regulator will also cast its net wider, to search a greater volume of data, examining, for example, whole email chains even if only one attachment is selected.

The consequence of this is an ever-increasing volume of documents and data requiring analysis when involved in investigation, disclosure/discovery, due diligence and compliance reviews today. For companies, maintaining the necessary expertise and personnel in house for such periodic exercises makes little sense, while law firms are required, depending on the volume of data, to be able to scale up their investigation teams in a cost-efficient way.

Technological advances in big data processing and management have followed this explosion of data enabling in-house lawyers and those in private practice to tackle these challenges. There are many different document review platforms on the market. Depending on the volume of data, the complexity of the case and the language(s) involved, some options may be more attractive than others. For example, some review platforms specialize in Korean, Japanese and Chinese languages, which might be a challenge for some other review platforms. Other review platforms are price competitive only when the review involves a large amount of data but not otherwise. In essence, they are all used to assist the review process in a similar way, by quickly and efficiently organizing and searching a vast volume of documents from a variety of sources. Traditionally, the aim has been to significantly reduce the amount of data that will actually be reviewed by a team of project lawyers. More recently, predictive coding is increasingly being promoted as a cost-efficient strategy to identify whether certain groups of documents are likely to be relevant or not, based on advanced mathematical algorithms.

However, technological advances and computing power alone cannot guarantee success. Recent decisions by regulators and courts on both sides of the Atlantic reinforce the point that technology can only be part of the solution and needs always to be deployed thoughtfully2. Critical factors, such as organizing and managing the review process, final decisions about which documents are relevant or privileged, and issues related to data protection and redaction can only be appreciated and dealt with by humans. Moreover, document review exercises in Europe often involve documents in several languages and/or jurisdictions, making the involvement of multilingual document review teams indispensible. As a result, the success of a document review project depends heavily on the combination of the right technology platform and the selection of the reviewer team.

Specialist document review firms offer support in this area by combining technological tools with a large, flexible pool of skilled document review lawyers. Most of them also will support the management of the review project if required, since there are some key considerations to take into account to ensure success.

The primary considerations are the same, whether the review has been triggered by a regulatory or antitrust investigation, a litigation or arbitration case, or as a result of a compliance or due diligence exercise. After data collection and processing, the location of the review, the expertise required, and the languages involved will need to be determined. Document review projects can take place at company premises, at a law firm’s office, or at specially hired document review rooms, usually managed by the document review provider. Data protection issues and convenience are key considerations when selecting the location of the review. For example, while a remote document review in an overseas review center might appear as a cost-efficient choice, data protection concerns and the convenience of direct communication between the review team and the client are more important.

When it comes to selecting the right team of document review lawyers, the expertise of the document review company is key. In contrast to traditional legal recruitment, selection should be driven by specialists who have hands-on experience in document review. The best companies will have access to a large pool of project lawyers, spread across various locations in Europe, who have experience in document review and who are experts in their subject matter. They will have robust selection processes for the recruiting of additional review lawyers in a timely fashion, when the existing pool of lawyers cannot meet the requirements of a specific project. Furthermore, they will ensure that the lawyers selected work well together as a team.

Many document review companies can provide a complete managed review service, where the whole process from team selection to quality control and delivery of the relevant documents is fully managed by them. It is important that document review workflows are documented and defensible, as well as flexible enough to be customized based on the requirements of the project. Best practice involves the generation of a team brief that includes an overview of the case, the custodians and the legal issues involved, any technical terms and jargon, and most importantly detailed instructions for the classification of documents. Once a review is up and running, quality control and regular reporting are vital to ensure consistency and accuracy, and to keep track of the review progress. Quality control procedures will vary depending on factors such as subject matter, case complexity, and deadlines. The review manager will provide feedback on issues raised at quality control to the review team resulting in a better quality work product. Regular reporting, e.g. daily or weekly, provides an open channel of communication between the review team and the supervising lawyers or client, since close cooperation between all parties is vital for the success of the project.

In summary, dealing with big data is a modern-day challenge that is expected to remain. While technological advances have lowered the threshold for tackling document review requests, choosing the right partners for data review and analysis is key to success.


The authors:

Io-Anna Lianos - Lexsensis - the legal document review companyIo-Anna Lianos is a dual-qualified solicitor admitted in England and Wales and at the Athens Bar Association, Greece. She is an expert consultant in complex eDiscovery and Managed Review processes with years of experience managing large-scale document review projects across Europe and Asia. In 2009, Io-Anna founded DLR Legal, one of the pioneers of document review consulting in London, specializing in multilingual reviews across Europe. She built up a large Europe-wide network of document review specialists, covering 28 jurisdictions and a multitude of languages. Over the course of her career to date, Io-Anna has advised clients on all aspects of managed review processes, including on best practices for solving complex managed review and legal staffing needs. She is the Director of LexSensis, responsible for all operational and strategic aspects.

 

Jennifer Sharman Koh - Lexsensis - the legal document review companyJennifer Sharman Koh is a solicitor of England & Wales who has practiced international arbitration in London, Paris and Brussels, advising multinationals and governments on major international disputes. She has extensive document review experience both in the development of managed review protocols and in the practical setting-up of reviews across Europe. At LexSensis, she built-up a large network of lawyers to work on document reviews across Europe, whatever the country, whatever the language. Jennifer is responsible for operational and strategic aspects of LexSensis and is the key client contact in the Benelux.

 

 

 

 

 

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1 Source: Ebay.

2 Best practices for merger investigations, Bureau of Competition - August 2015, US Federal Trade Commission; Smailes and another v McNally and another [2015] EWHC 1755 (Ch).

 

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