Cloud Computing

 

Remember when attorneys had to travel to offices to review paper documents as part of the discovery process? They still do. The holdover from our paper discovery days means that accessibility to legal expertise is limited to those qualified resources living near and willing to commute to a specific location. And while the right number of attorneys may be available in dense urban areas to handle the increasing volume of electronically stored information (ESI), they may not always be the most appropriately qualified for the matter.

For example, a recent life sciences IP patent litigation matter handled by our company included tens of thousands of complex documents requiring both JD and PhD-level subject matter expertise for accurate understanding and issue coding. Given the required combination of legal, academic and document review-specific expertise, finding the right reviewers within commuting distance to an existing—or even temporary—review center would have been an insurmountable hurdle, regardless of the client's time and budget flexibility.

Instead, appropriately credentialed candidates were identified and recruited from five different states, integrated into the active review process via a highly secure virtual desktop solution and remotely overseen, in real time, by our review management team. All reviewers worked from the comfort of home, using the 70-issue code panel designed specifically for their subset of documents.

The expertise provided by these remote reviewers offered a level of quality and time savings to our client unavailable with the traditional facilities-based review model. That's critical because the sheer number of review attorneys required to handle the growth of ESI, as well as increased demand for niche practice expertise, will force significant changes to how we currently support review within the e-discovery process.

The good news is that e-discovery has access to proven technology tools and can get the right documents in front of the right expert resources securely regardless of their location, specifically including work-at-home legal professionals. It's time to move past the confines of legacy paper discovery workflows.

Undeserved Concerns

Given the digital nature of e-discovery, I continue to be surprised at the virtual lack of a remote, home-based distributed legal review model. But its absence is understandable given the pushback from e-discovery industry veterans used to patterns established years ago under a paper-driven regime as to why corporate clients and lawyers will never accept remote review as a standard practice. Why is this a problem when documents no longer have geographic boundaries? Concerns over non-facilities-based managed review include its perceived:

  • Lack of security;
  • Risk of lower-quality resources; and
  • Inadequate oversight/collaboration.

Focus on Security

E-discovery is highly regulated—especially when it comes to data privacy and personal information.

Law firms, unfortunately, are rightly criticized for their data security readiness. According to the 2016 ABA TechReport, 26 percent of the largest firms (500+ attorneys), those most likely doing office-based reviews for clients, reported having experienced a security breach. Nearly 60 percent of all respondents said that their firms did not have a breach response plan in place.

“We are a self-governing profession, and there hasn't been an environment to do cybersecurity,” says Daniel Garrie, founder of Law and Forensics, a tech firm that specializes in forensic investigations for law firms and others, in the March 2017 ABA Journal article “Law firms must manage cybersecurity risks.”

Unlike law firms, e-discovery providers consider security and data privacy part of the lifeblood of their brand and a core part of their value as an outsourced solution. E-discovery companies should already employ security measures including data-in-motion and at-rest encryption to NIST standards, role-based access controls, frequent vulnerability and penetration testing and ongoing security and awareness training for all personnel. These data security tools would benefit a remote review model—making it more secure than the managed reviews currently taking place for corporate clients in their law firms' office locations.

Quality Assurance

There are many traditions within professional environments; change is often disruptive. Let's take a look at the medical profession's initial transition to teleradiology as an example. Physicians were alarmed that those choosing to work from home, and in a productivity-based compensation model, would not represent the “best” of their profession; the implication was that the level of care would be of a lower standard, reflecting poorly on the overall practice of radiology.

They were right that teleradiology attracted a different breed of physician; they were wrong that the level of care was in jeopardy.

Teleradiology quality success can be attributed to multiple factors including radiologist recruitment and vetting practices, subspecialist-focused engagement, internal QA best practices, ongoing radiologist performance management, and direct client feedback

A similar quality assurance template is already in place for facilities-based review; why would the quality level for lawyers working from home be any different? And most law firms already encourage their professional staff to work remotely. According to the ABA TechReport 2016, 77 percent of lawyers already do legal work from home (not counting those whose primary office is a home office).

Based on our real-world experience with secure remote review, lawyers choosing to work from home full- or part-time are not unable to find or keep a facilities-based traditional practice position. Rather, they fall within several categories, all of which contribute to consistent and high levels of quality work:

  • Highly motivated, younger lawyers who embrace technology and who aspire to the work/life balance that remote review allows;
  • Specialized lawyers who prefer to practice within their specialty; and
  • Experienced lawyers who choose to work part-time pre-retirement—and who can work from anywhere they like.

Out of Sight, Not Out of Mind

Lawyers working remotely are subject to the same oversight as their facilities-based counterparts, with constant contact for legal, technical and operational support. Lawyers are able to use secure text and video chat to consult with their peers to ask questions and collaborate on matters.

Bottom line: A review attorney is a “lawyer's lawyer,” with little to no reason to be in proximity to a client. Remote review can easily employ secure communication tools to facilitate consultation and create a team environment, albeit a virtual one. Having access to a much wider range of lawyers, with a wider range of experience and specialized training than just those working within an office or review center, is a benefit to the reviewers, clients and case outcomes.

Time to Evolve

Our industry needs to use the tools and workflows employed by other industries to evolve to a highly secure, distributed professional network. We are not trailblazers in our evolution, but rather the beneficiaries of proven experience. The evolutionary forces underway within e-discovery are occurring at a faster pace than ever before. Let's not ignore these inevitable changes that will benefit our clients and our profession.

 

 

Jim Burke is the CEO of Advanced Discovery, an award-winning global e-discovery and risk management company.