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?
The Legal Process Outsourcing blog also has a nice checklist of concerns to consider.
Although legal process outsourcing seems like an attractive cost-cutting option, missing key documents in first-level review can have dire consequences. As we have seen over the past few years, failing to produce relevant documents - even inadvertently - can lead to costly discovery disputes, sanctions, and public embarrassment for the company involved, and for the inside or outside lawyers who delegated the task.
Every now and again, I take on a document review project. I have seven years of practice experience under my belt and four of those years include civil litigation. The last project I was on was all too horrifying. The reviewers were predominantly inexperienced and just out of law school. The supervising "contractor" for the project (which was not the defending law firm) was constantly pushing for volume over quality. It seemed that finding documents to be non-responsive was rewarded over finding documents to be responsive, even if there was a plausible explanation from my perspective of having been involved in numerous discovery motions and hearings on matters that were exactly of the subject matter in which we were dealing. The long and the short of it is, I cannot imagine what an even worse decline in quality will occur if these projects are shipped overseas where there are language and ethical issues to deal with.
Nice write-up! you bring up an interesting topic. I believe outsourcing is necessary in today’s business environment to save on cost. It has become necessary to cut the corner every where to remain competitive.