Man vs. Machine: Will E-Technology Render Associates Obsolete?

 

     In a highly-anticipated showdown, the IBM-created computer “Watson” prevailed against two human champions on the television game show "Jeopardy!".  In a world where machines have already replaced humans in manufacturing and human labor tasks, this sneak peak into a future where humans might also be replaced by machines in intellectual pursuits, was somewhat daunting.

 

     However, in the world of legal technology, that future might already be here. New technology in searchable electronic formats has already eliminated innumerable hours spent by associates and paralegals pouring over hundreds of thousands of documents.  Is this only the beginning . . . and is it desirable?  In the battle of Man v. Machine, will e-discovery software "free lawyers to be lawyers" or will they simply "reduce the number of jobs for associates"?

In a column by the staff of The Legal Intelligencer published on the Pittsburgh Post-Gazette.com site, it was reported that “the growing use of software programs that can sift through mountains of electronically stored information turned over as a part of pretrial litigation…could put out of work a veritable army of young associates.” The column referred to an article published in the New York Times that said, in part:

 

After all, software doesn't bill at rates in excess of $100 per hour, and, moreover, as one lawyer told the Times, computers don't get bored or get headaches -- two very common occurrences when poring over thousands of e-mails, most of which will prove irrelevant to the crux of the case.

 

The column went on to note that “Paul Krugman, the newspaper's economic columnist, cited the story in arguing that even high-status professions like the law can be vulnerable to redundancy as a result of technology.”

 

     The new technology of producing documents in searchable electronic formats has already eliminated innumerable attorney hours.  Where once every document produced had to be read and considered for its possible value to the case, now the use of keyword searches and other new technology allows the machine, not the human, to identify documents that need further review. But currently, every document identified by the program still has to be vetted by a human for its possible relevance to the case. For law firms and their clients, the dollars saved by having software programs review electronic documents can be much better allocated to the actual preparation of the case; or, as the column noted, “If anything, e-discovery software is as likely to free lawyers to be lawyers as it is to reduce the number of jobs for associates. In any event, many of those jobs have already been outsourced or given largely to support staff.”

 

    So, for the moment, humans appear to still have functional value over their machine counterparts. And don’t forget, Watson may have won the Man vs. Machine tournament, but he incorrectly answered Final Jeopardy while both the humans got it right, proving we’re not obsolete…quite yet.

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.