This past week, Xerox Litigation Service launched a managed review offering, which complements the company’s broad array of discovery technology, consulting and client services. So, it appeared an opportune moment to briefly address trends and principles related to attorney review of information in discovery contexts.
Now, to define our terms. Admittedly, virtually all document review is, at some level, “managed.” That is, unless the review consists of a single in-house or outside lawyer reviewing his or her client’s documents for relevance to an underlying matter, a competent review requires some amount of project planning and management. In most contexts, what distinguishes the service we call managed review is that project planning, assembly and direct oversight of the review team, and all necessary project management support for the review, are provided as a bundled service to counsel by a professional discovery support group. In delegating the routine disciplines involved in conducting a competent and efficient review to professionals with that specialty, counsel can focus more of their effort on tasks of a higher, more strategic value for the client, while maintaining necessary visibility into and supervisory control over the course of discovery and review. So, the defining feature of managed review is the inclusion of comprehensive, specialized project management.
Fundamental best practice principles of managed review have been well addressed in many separate presentations, but a good primary industry resource that details basic architecture of a well-designed review exercise can be found at http://www.edrm.net/resources/guides/edrm-framework-guides/review-guide. This basic architecture – with components labeled initial project planning, workflow design, training, reporting, etc. – has been adopted in one form or another as the best-practices approach to projects by each of the leading managed review providers and has been presented on their respective websites, probably with a trademark symbol appended. In practice, there can be a number of significant differentiators among various providers but these would not be readily apparent based solely on most of their promotional collateral.
So, how does one distinguish the very strongest providers?
First, determine the strength of their talent – from senior leadership to project managers, and any other project-supporting players. How experienced are these key people, and how broadly experienced? Does the talent combine substantial legal practice experience and solid project management and litigation support skills? (Litigation and discovery practice experience proves its value in how well the objectives supervising counsel has set for a given project are understood and how well workflow is adapted to achieve them; project management is, for the most part, a discipline mastered by lit support professionals but not by lawyers: a set of skills that mark how precisely a plan, once agreed to, is executed, and how progress and performance is tracked). So, the mix and level of talent and skill sets is critical.
Second, determine how prepared the provider is to integrate technology advances into their processes. We clearly are seeing a growing range of powerful tools and applications that promise faster and more accurate analyses and categorizations of unstructured data. It remains an open question to what extent technology ultimately eliminates the need to manually review volumes of documents in most cases. But, in any event, that time has not yet arrived. But it is no longer disputed that traditional linear, manual review is far too time-consuming and prone to error to stand alone. All approaches to managed review should include options and recommendations on how effective use can be made of available technology-assisted review (TAR) or predictive coding tools, along with advanced search techniques to filter, sort and grade or categorize massive volumes of unstructured data – not as a magic bullet but, in combination with human review, as an integral part of a disciplined, well-planned discovery process.
Remember these three key elements of managed review: it’s the team’s experience, competencies in designing and implementing a best practices architecture and ability to integrate appropriate technology that are going to make all the difference in the end result.