Offshoring document review?

As many of us are all-too-painfully aware, technology has been a mixed blessing to both business and the law.  The ability to generate and store information electronically has allowed us to be more productive, but has increased exponentially the amount and types of documents and data we produce and store. 

In turn, this proliferation of ESI has dramatically changed the nature and the cost of litigation, and, in particular, the nature and cost of discovery.  In large-scale civil litigation, the lion's share of litigation costs stems from first-level document review:  that initial review, usually conducted by junior attorneys or paralegals, to analyze documents for responsiveness, confidentiality, privilege, and to identify and flag key or "hot" documents.   

When you're facing millions upon millions of pages of ESI that need first-level document review, do you (1) staff it with lawyers from your firm or from outside counsel, (2) staff it with a mix of lawyers and paralegals from your firm or outside counsel, (3) hire temporary / contract attorneys and/or paralegals to staff the review, or (4) outsource to a U.S. firm specializing in document review?  Now, yet another option grows in popularity:  "offshoring" or "nearsourcing" your first-level ESI review to lawyers in another country. 

Offshoring your document review to another country - like Canada, India, Israel or South Africa - has its benefits, as this article outlines, but it also poses serious risks.  Some issues to consider when contemplating offshoring all or part of your first-level review:

  • How do the laws of the country to which you are offshoring treat attorney-client privilege, work product privilege, privacy, confidentiality, and ethical issues?
  • What are your rights and recourse in the case of data theft or misappropriation?
  • Are language issues are surmountable?
  • What employee screening and training processes employed by the outside vendor to insure that the most competent, ethical individuals are working on your project?
  • What quality control measures does the outside vendor employ to insure that documents are being coded correctly and key documents are not being missed?
  • What processes can you put into place to quality control the work from your end?
  • What security measures does the outside vendor employ to prevent misappropriation?
  • What type of professional liability insurance does the outside vendor retain?
  • Can you "audition" the outside vendor first, by quality checking their review of a previously-reviewed set of documents?
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Waiver making you nervous? Rule 502 purports to help.

A bill to add a New Federal Rule of Evidence was introduced in the Senate on December 11, 2007 and approved by the Senate Judiciary Committee on January 31, 2008.  Prior to its introduction on December 7, 2007, the ABA sent a letter to the Senate Judiciary Committee endorsing the proposed rule.

The new proposed rule addresses waiver of the attorney-client privilege and the work product doctrine.  The proposed rule provides protection against a finding of waiver in circumstances where there is an inadvertent disclosure/production of privileged material, as long as the disclosing party had taken reasonable steps to prevent the disclosure.

This proposed rule is intended to remedy the problem of conflicting rules and decisions on this topic by the various federal courts.  It is also aimed at the great risk of inadvertant production and soaring litigation document review costs in the age of e-discovery. The proposed rule, however, does not identify what constitutes "reasonable measures" to protect against disclosure, so there will still be plenty of room for disagreement.

thomas.loc.gov/cgi-bin/query/z --Text of proposed Rule 502.

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Care For A Sample?

Rule 34 allows the option of discovery in "native" file formats, which can provide a litigant with much more detailed information than a TIFF (tagged image file format) file.  However, TIFF files are much easier to manage, and the storage and management of native file formats can be costly and cumbersome.  A recent ABA Journal article suggests that offering to provide a sample (or requesting a sample) of digital archives in their native format early on in the discovery phase can save parties significant time and money.  Parties (or the court) can then determine whether or not the evidence contained in the native format is relevant.  If it is not relevant, both parties are spared the expenses associated with the storage, review and management of the native files.  If the evidence is relevant, parties can proceed knowing that their resources are being utilized efficiently. 

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E-Discovery Munchkinland

The recent development of virtual worlds (Active Worlds, Second Life, There ViOS, to name a few) proves to be a viable storefront for the legal world. Even Judge Posner of the Seventh Circuit Court of Appeals got into the game as he "appeared" in Second Life to discuss the U.S. Constitution and intellectual property issues. And if you wonder what virtual worlds have got to do with your practice, Diane Duhaime of Jorden Burt LLP has a good article on V-Ws from the legal perspective.

Although I'm not a citizen or avatar of any of these virtual worlds, I did find a list of entities offering legal services on Second life. My sense is that law firms large and small will continue to create a stake in virtual worlds as we know it today. (For further info, listen to (MP3) a discussion of virtual law firms sponsored by the LegalTalkNetwork).

For some, virtual worlds represent a new career. For others, it's a viable source of business. As legal services begin to branch beyond the linear non-3D environment, the volume of information will inevitably increase. This virtual expansion in bits and bytes generates yet another rich source of data mining-- kind of like the Munchkinland of ediscovery. Not only does it represent a new frontier that may present complex legal issues, it also concerns how information is disclosed or retained. In the blink of an eye, you're not in Kansas anymore.

Client Confidentiality and WiFi

The next time you log into your work email from the corner coffee shop on a sunny Sunday morning, or from your hotel room or a seat at the airport in the midst of business travels, this article from The Legal Intelligencer may give you pause. 

"Free" WiFi "hotspots" are springing up everywhere.  But they may cost more than we think:  when we take advantage of unsecured wireless access, the information we input does not go directly from our laptops to the nearest connection.  Instead, it floats out there in the air (I believe that is the technical term...) for a radius of up to 500 feet.  Highly tech-savvy miscreants (ok, hackers) can misroute these transmissions to their own "Evil Twin" wireless access sites, and capture the confidential information of unsuspecting users, with devastating consequences.  Of course this raises concerns about data security generally, but it also could implicate - or compromise - the attorney-client privilege and work product protections, and land attorneys in ethical trouble. 

Fortunately, the article provides some helpful tips on how to secure your computer and avoid misappropriation of your clients' - or your own - confidential data.

On a more whimsical note....I like to think that when I stopped for my morning latte in Los Angeles, dialogue from 2010's Best Picture could have been floating in the air right past my head.

LegalTech 2008

Legal Tech 2008  starts today in New York City and looks to be not only an opportunity to meet and assess vendors of e-discovery and related information technology services but also a veritable clearinghouse of helpful information on e-discovery issues.  The schedule this year includes several interesting - and, doubtless, highly informative - panel presentations on key legal and technological issues relevant to e-discovery, including:

  • best practices for data storage, retention, identification, retrieval and review;
  • privilege issues particular to electronically-stored information;
  • issues implicated by offshore outsourcing of ESI review, including international ediscovery rules and standards;
  • readiness and strategic planning;
  • choosing an e-discovery platform;
  • cost management; and
  • particular evidentiary issues raised by ESI.

If you can't make New York in February (brrrrr), Legal Tech arrives in Los Angeles June 26-27, 2008.