The primary purpose of first level document review is to review documents and determine whether or not they're "responsive" or "non-responsive" as they pertain to a specific legal case or issue. In essence, first level document review forms part of the discovery phase of litigation. It is performed prior to producing and after receiving documents pursuant to a legal "Request for Production of Documents." It's the initial review phase that helps narrow the document set to a responsive and workable data set for later, more senior review.
Typically in litigation, vast amounts -- often numbering in the millions -- of documents are routinely being reviewed by teams of law firm associates, contract attorneys and paralegals, in an effort to identify whether or not documents are:
- Relevant to the case at hand
- privileged/protected, and
- "Key" or "hot"
Litigation aside, aspects of first level document review are also routinely performed in matters of regulatory compliance and corporate due diligence.
The Technology Fix
Technology has been a mixed blessing in the litigation cost-hike dilemma. On one hand, the growing amount of ESI is a large part of the problem. For example, well over 90% of all current data is being produced and stored electronically. People are storing and producing more ESI because the costs associated with it are practically nonexistent. Therefore, as ESI increases, so do the hours and expenses associated with first level document review.
On the other hand, the last 10 to 15 years have seen a dramatic transition that has allowed technology to play an integral role in the document review process. Gone are the days when attorney and paralegal teams gathered in large rooms or warehouse-style environments (known as "war rooms"), meticulously going through bankers' boxes filled with paper documents in preparation for litigation. Instead, the war rooms have transformed into computer-filled rooms where teams of people are armed with electronic platforms and technological solutions in an effort to identify responsive data.
However, even with the best technology and electronic discovery (e-discovery) practices, the truth of the matter is that robust technology can only do so much. It is understood that current industry e-discovery best practices can reduce a data set by as much as 70%. But, like many litigation cases to date, even after performing e-discovery best practices, what if that data set still consists of 25 million pages to review?
The Legal Process Outsourcing Solution
Inefficiency drivers in first level document review are the drivers behind LPO. These include the following.
Current US practices have law firm associates, contract attorneys (typically hired through staffing agencies), unlicensed law school graduates and paralegals performing first level document review functions. The billing structure for these services is still akin to traditional per-hour law firm billing, although at a discounted rate. Many times, billing is comparable to what a mid-sized law firm bills for its associates.
This is not to say that the individuals performing first level document review are directly inconsistent. Rather, inconsistencies are inherent in the current domestic model of document review. US practices lack constant and consistent teams to perform document review.
Typically, teams are rounded up and dismantled on an as-needed basis using attorneys, paralegals and law school graduates that are often undergoing transition themselves, having moved to a new city, searching for employment or awaiting bar results. This, in turn, has created a "day laborer" mentality, powered and weighed down by a constant "turnover" of first level document reviewers. For example, it is not uncommon for document review teams to start with 40 to 60 individuals and during the course of the project to lose over half of the original team.
With costs and inconsistencies in mind, high document reviewer turnover has not only affected the consistency of first level document review projects, but has led to an inefficient model of "train and retrain," ultimately exploiting valuable client resources and time.
The India Solution
US litigation costs soar, LPO provides a solution for alleviating first level document review inefficiencies. And India is proving to be a country that many companies are turning to for its large and skilled workforce. In terms of LPO, India possesses the following desirable characteristics:
- Political and economic stability with a high-quality, low-cost and flexible workforce.
- One of the largest pools of English-speaking graduates in the world.,
- English as the language of instruction in law schools.
- legal system based on English common law (US and UK). Therefore, legal understanding and analysis is applicable and adaptable.
- Time differentials that allow for around-the-clock document review.
- Advances in technology that allow for remote and secure document review.
- The ability to maintain a constant and consistent team of trained individuals at reduced costs.