Considerations in Outsourcing: Direction and Oversight of Contract Attorneys and E-Discovery Vendors

As law firms seek to keep case teams “lean” while trying to handle the volume of electronically stored information (ESI) that is fair game in litigation, regulatory actions, and government investigations, firms are engaging e-discovery vendors and contracted document-review attorneys for the vast majority of client matters. By outsourcing document review to a dedicated team of attorneys, counsel can move through discovery in a more efficient and cost-effective manner. Teams of e-discovery specialists that can analyze ESI from a metadata perspective further improve the process using complex programs including language algorithms and artificial intelligence to separate the wheat from the chaff and streamline the review team’s work.

Using third-party vendors, or outsourcing, generally refers to ‘‘the practice of taking a specific task or function previously performed within a firm or entity and, for reasons including cost and efficiency, having it performed by an outside service provider.’’ See ABA Commission on Ethics 20/20, Revised Proposal—Outsourcing (Sept. 19, 2001). Significant ethical issues should be considered when retaining outside attorneys and third-party vendors to handle certain aspects of legal work and technology-support services, respectively. Typically, these relationships are the responsibility of senior-level associates that have significant experience with discovery procedures, document-review processes, and evolving methods of approaching a daunting volume of ESI that has to be reviewed in order to assess legal claims and make strategic decisions for the client. Following are some of the key issues for senior associates to keep in mind.

1. Provide appropriate substantive explanation and direction. Prepare a thorough, detailed, comprehensive review memo. The e-discovery vendor and the document-review team must understand the general claims and issues in the case in order to use effectively the ESI technology available to identify and prioritize materials that are most likely to be relevant to the litigation. Attorneys should provide the e-discovery vendors with a complete list of the legal claims and damages sought in the litigation and additional legal and factual issues that require evidentiary support from the documents and data in a client’s possession. E-discovery tools can be used to identify a subset of the universe of client documents and data for review, or a more conservative approach can prioritize review of all documents collected from the client. The attorney responsible for the vendor relationship must provide clear directions regarding processing and organization of documents for review. The responsible attorney should advise the client of any steps taken to exclude documents from the ultimate review set and obtain client consent, if necessary.
   
   Likewise, the document-review team should understand the legal claims and fact issues relevant to the litigation. The document reviewers are barred attorneys that are acting as an extension of the firm when performing document-review work on a matter. Thus, it is imperative that the team understand the implications—both positive and negative—of any communications, business records, contracts, financial data, and other relevant information that could exist in the documents under review. Schedule a “kick-off” call with the document-review team to talk through the review memo and allow the review team to ask any substantive or logistical questions during this call. Consider whether the review team should review any other materials or information prior to beginning the document review. For instance, consider providing the review team with any D/B/A trade names, entity affiliates, or entity agents of other parties or relevant third parties to inform their review. The results of a document review are only as good as the instructions provided.
2. Maintain ongoing communication/address issues in real time. The document-review memo provided to the review team will need to be supplemented. No matter how many times a review memo has been revised, reviewed, and proofread, the e-discovery vendor and the document-review team will have questions. When data is first transferred to the e-discovery vendor, provide specific requirements for extracting the relevant metadata and preparing it in a usable manner that will facilitate the document-review team’s analysis. For instance, date and time stamps should conform to a particular time zone; author and recipient information must be accurate and complete for email communications; hidden data such as Word document comments and redlines must be visible; and any foreign language must be translated.
   
   The document-review team will identify questions and issues during their review that will implicate responsiveness and privilege protections of individual documents. Questions should be escalated to the responsible attorney and feedback provided promptly to avoid “open questions” during ongoing review that may require re-review in the future. Do not be afraid to add coding fields or issue tags after the start of the review. The review is not a linear process and ongoing communications will improve the quality of the review in real time.
3. Ensure proper recordkeeping by vendor and within the firm. The e-discovery vendor should maintain full records of correspondence with the lawyers and in-house litigation support or other individuals involved with the case. However, it is the attorney’s own responsibility to maintain full records of any strategic decisions made regarding review, coding, and production of documents.
4. Privilege concerns must be specifically articulated. The scope of privilege protection, while generally defined as attorney-client communications and attorney work product, may be construed differently in different jurisdictions or before certain regulators. Additionally, the client may have an institutional preference to make broader claims of privilege to prevent inadvertent waiver. Be sure to understand the scope of privilege protection, the client’s preference, and how questions regarding privilege may arise within the review set. Clearly convey these parameters to the document review team and address any questions or ambiguities in real time.
5. QC QC QC. Appropriate management and oversight require quality-control reviews at multiple levels. The document-review team is only the first level of analysis. The vendor should implement a process to perform a QC review of randomly selected reviewed documents. Additionally, the responsible attorney should develop a protocol of escalation of documents for the review team to perform a second-level review of difficult or nuanced issues. This includes responsiveness, relevance to particular factual issues or legal claims, and privilege determinations. A second-level review also facilitates consistency in document coding. Last but not least, the responsible attorney and in-house litigation support personnel must perform substantive and technical quality-control review of any final documents that will be produced.