Document Review : The X-Files revealed

• Introduction.

  Document Review (popularly ‘doc review’) is a task performed by an attorney in anticipation of legal proceedings or during the discovery phase of litigation. Generally, Document Review process is a part of pre-trial discovery procedure (i.e. during the production of evidence/document phase in litigation). The term Document Review includes analyzing, organizing, compiling and summarizing of documents, e-mails, correspondences, contracts, spreadsheets, reports, invoices, memos and attachments in order to make them ready to be filed in court as evidence. Basically, the whole need for Document Review arises when one party to the litigation (requesting party) wishes to have access to other party’s (producing party) documents.

  Document Review requires the attorneys to assess the relevance and/or responsiveness of documents, utilizing the legal expertise to the facts of the case and the issues of law. Later stages of document review (also known as ‘privilege review’ or ‘second level review’) further analyzes documents as privileged (on the basis of attorney-client communication and/or work product) and not privileged. The Privileged Document may be either withheld from production or redacted for content. The actual review of the documents is generally performed electronically (e-mails, files, scanned copies of documents). With proliferation in electronically stored data, an e-discovery first level document review estimates 75% of the average litigation cost.

  ‘Outsourcing of Document Review’ is a term commonly used for delegating all or some portion of the e-discovery process to a LPO company. Primarily like all LPO processes, Document Review involves intelligible analysis of data into useful work product. Data explosion, technological evolution, and the sudden increase in Electronically Stored Information (ESI) has catalyzed steep growth in offshoring Document Review work, as the total quantity of documents has multiplied several times over the years. With more and more streamlining and channelizing of legal processes, a need is felt to cut upon the cost involved in Discovery Processes. Offshore outsourcing to India has emerged as an effective and economical tool for managing Document Review needs. The LPO company conducts searches and evaluates the data (in the form of e-mails, pictures, design or sketch) for Relevance, Confidentiality and Privilege, and related activity such as redaction as per client’s requirements.

  Besides in litigation, Document Review is also performed in matters of regulatory compliance and corporate due diligence.

  Rule 26(f) of Federal Rules of Civil Procedure (FRCP) expects the litigating parties to establish methods and formats (such as TIFF, Native file, etc.) for production of ESI (Electronically Stored Information) early on in the litigation.

  The Discovery Process

  During the Document Review process quite often millions of documents have to be searched and identified for

  · Relevancy and responsiveness

  · Confidentiality

  · Privileged /protection such as attorney-client and work product

  · Client defined "key” or "hot" status,

  For large scale Document Review processes the Privilege filters are implemented as soon as documents are received, even before they have been reviewed by an attorney.

  The litigating parties participate in the initial meet and confer sessions to reach an agreement as to the:

  - Identification of all sources of discoverable data,

  - Collection of data (from sources such as tapes, drives, portable storage devices, networks, etc.) and

  - Processing of data (which involves reducing the overall set of data collected by filtering out duplicate or irrelevant files, and determining whether additional data extraction of relevant data may be required).

  Search techniques that software like Attenix has to offer for the purpose of culling are:Keyword, Boolean, proximity and concept searching. Such techniques, as used by the in-house IT dept. of the client, facilitate the process of initial culling of the documents, including de-duplicating, before a LPO company is provided access to them for the purpose of review. Processing also involves maintaining a full copy of all data collected, creating a duplicate set of the culled data for further de-duplication, processing, review, analysis, production and presentation.

  Rule 26(b)(5)(B) of FRCP contains responses to the mistaken release of privileged information. Such a provision of the FRCP enables the producing party to recover back its identified confidential documents which inadvertently were passed on to the requesting party. This provision is called “Claw-Back” clause.

  Data Preservation - When outsourcing to an LPO, the client is most concerned about preserving its metadata. Therefore, all the documents uploaded on to the third party software are not original, but duplicates of the original. Backup tapes of the original documents are also maintained. This is done to maintain a valid chain of custody and authenticity protocols, including full preservation of metadata, ensuring that all ESI is protected against destruction or alteration.

  The Production Process - Typically, the production format is at the option of the requesting party, unless that format can be shown to be unduly burdensome. FRCP 34(b) overtly states that the requesting party may select the method of production, subject to producing party’s objection. However, if the requesting party fails to specify a particular method, the producing party may produce the documents in any electronically searchable form.

  Data Collection - For the purpose of having the documents reviewed, the client (one of the parties to the litigation) may either directly approach the LPO or may come through a third party vendor.

  In case an LPO is approached by the client through a third party vendor which has the software to showcase the documents in the agreed format, such vendor coordinates between the LPO and the client regarding the username, password, license for accessing the software (license ordinarily being accorded keeping in mind the number of reviewers that the LPO company engages for review). Such software acts as a web-based user interface, and facilitates access to offsite database. This whole process is called “customization of software”.

  Data Analysis

  ANALYSIS Process - Before getting down to tagging the documents on the software, it is important for an LPO company to seek summary information from the client regarding the subject-matter of litigation to which the documents to be reviewed pertain. This helps with important early decisions as regards the criteria to be set when assessing the documents for various sensitivity levels.

  REVIEW Process – The review process involves segregating all privileged and confidential documents, and preparing a Privilege Log, say, an excel sheet that LPO reviewers will prepare, describing every document. Even though the tagging of the documents into Hot, Confidential, Not Privileged, Questionable, etc. is done on software’s as part of first pass review, it is advisable to maintain an excel sheet in order to track any later changes in the tagging of certain documents made in consultation with the client.

  After the first pass review is over, the client accesses the documents through the common software provided to both the client and the LPO by the vendor, (such software thus acting as a bridge between the client and the LPO). The client would then express its concern regarding the flagging of the documents after spot checking, and if clients conveys satisfaction about the tagging done so far, the LPO company would begin with privileged review, which entail further sub-categorization of documents tagged as “Confidential” into “Work Product” or “Attorney-Client Privilege” or both (commonly referred to as AC/WP).

  If a document is tagged as “Work-Product”, it means that the document (which may be an e-mail with an attached document proposed to be submitted in the court) contains matter prepared or discussed in anticipation of litigation.

  On the other hand, any correspondence or exchange between the client’s attorney and the client that discusses the progression of the case, the strategy to be followed or any future court dialogues, etc. are flagged as and protected under “Attorney-Client Privilege”.

  Share of offshore document review

  To start with, it was the “e-Discovery Laws” of US Regulations, 2006, which brought to fore the need to find solutions to the problem of non-availability of affordable attorneys and the management of the enormous workload owing to these Regulations. So the obvious answer to this was to outsource these services to a country with relative cost advantage and with no compromise of quality of work.

  India became an answer to this owing to, firstly the similarity between the legal systems of India to that of US & UK. Secondly, due to the availability of inexpensive but highly educated and experienced attorneys and above all, because of its high quality standards of work.

  Offshore Outsourcing of Document Review: - Three important reasons inspiring the growth behind offshore outsourcing of Document Review process to India are:- 1> Cost, 2> Quick TAT(turn around time) and 3> Concentration on other core aspects. Almost all the LPO’s in India and locations like Philippines are into the document review process.

  Cost

  The cost per hour charged by an US Attorney when compared with the Indian Counterpart falls around 1/10^th (as detailed below).

  Quick TAT (turn around time)

  The time difference and the availability of 24x7 support staff fostered outsourcing. The time difference between India and US is 10.5 hrs., this reciprocity of day and night helps documents to be reviewed in a 24 hr. schedule. Also for an attorney heading home, this implies that he could assign the work to an Indian LPO and be assured that the work would be finished, as per his requirements, before he reaches office the next day.

  Concentration on other core aspects

  By outsourcing Document Review like processes, the client can better concentrate on other important and core aspects of litigation thereby saving time and monies.

  Indian Offshore Market

  Document Review and Litigation Support services comprise approximately 35% of the total offshored legal services revenues in India. Indian offshore revenues from legal services were $225 m for the calendar year 2007 and are expected to reach $610 m by the end of 2010. There are over 100 vendors in the Indian market offering document review services.

  India meets many elements necessary to cater the challenges and emerge as a primary destination of global cost-saving workforce. Largest pool of graduates, English as the medium of education, 80,000 law graduates churning out every year from privileged law schools, English Common Law based Indian Legal System and Time Zone advantage areinter-alia the factors inspiring growth in the LPO industry.

  Offshore document review maturity

  The outsourcing industry is all about getting rid of time consuming stuffs. Substandard deliverables is a perception left long behind. In recent times, there has been a rapid acceleration in high end processes like Contract Review and Management and Litigation Support. Indian vendors are satisfactorily delivering briefs, pleadings and motions apart from Legal Research to US/UK based clients. To wit, the Legal Outsourcing industry is in the initial stages of developments. The maturity level however is vertically raisin. From First level review to Second and Privileged Review they are all now within the circumscribing limits of legal outsourcing to India.

  Billing methods

  Typical billing rates

  Hourly rates for Law Firms and associates in US market now begin at more than $200 and average more than $300

  Hourly rates for service providers other than law firm e.g. contract professionals in the US market typically average between $60 and $150.

  Typical hourly rates for offshore attorneys in India range from $10 to $30 for a lawyer.

  For large scale document which involves high level of efficiency and quick Turnaround time Indian outsourcing companies also offer $1 to 1.5 per document.