The dramatic increase of electronically stored information understandably proves challenging for corporate counsel, as discovery costs for document collection, review and production can range from thousands to millions of dollars each year. A large portion of that expense is attributable to the review of custodial and central source documents for relevance, privilege and redaction.
One way to reduce e-discovery costs is to shift document review work from full-time associates to contract attorneys who have lower billable rates. Another option that provides even greater costs savings is transitioning portions of document review work to non-attorneys, such as college graduates or paralegals, who have even lower billable rates. This strategy allows companies to realize additional savings in their discovery budgets, while maintaining quality and defensibility.
While taking advantage of this option, it is important to ensure attorney oversight and establish privilege review safeguards. Below are four tips and strategies that, when used together, allow companies to confidently use non-attorneys to conduct document reviews and take advantage of this cost-saving option.
Training and Certification
Before a document review begins, conduct a training presentation for the non-attorney review team, describing the litigation process and focusing on the review team's role. Use a hypothetical fact pattern that mirrors the underlying cause of action for the review to provide context for the review team and familiarize team members with common terms used in litigation and the discovery process. Focus on legal privilege concepts, including attorney-client, work product, joint defense and the consequences of privilege waiver. Provide document examples for context, integrating the privilege concepts with the document review process.
After the presentation is complete, certify the non-attorney reviewers by administering an exam that measures their understanding of the work product and attorney-client privilege protections. Repeat the certification during the course of the review. Provide real-time feedback to the group as a whole and to individual reviewers to ensure consistency and accuracy in coding.
Leverage technology, such as database search features and keyword highlighting, to promote coding consistency and prevent inadvertent production of privileged material. Searches based on attorney names, law firms and other terms that may lead to privileged content -- such as "patent" and "infringement" -- can be conducted across an entire database or potential production populations.
Documents that contain potentially privileged terms can be segregated for review by contract attorneys; non-attorneys should review the remaining documents. This step ensures that non-attorneys review as few potentially privileged documents as possible. These searches can also be performed before the document production as a quality control measure to ensure that similar documents are coded consistently and that privileged documents are being withheld from production.
Making the Review Objective
Instruct the non-attorney reviewers to use a broad definition of privilege in case they encounter potentially privileged material. This broader analysis eliminates the nuances in identifying privilege. Examples include documents that contain an attorney's name or a term identified as leading to privileged protection (e.g., "attorney-client"). The documents flagged by this objective privilege determination can then undergo a second-level review by attorneys who are more familiar with the exceptions and rules regarding attorney-client privilege and the work product doctrine.
Blended Review Teams
When non-attorneys participate in a document review, attorney oversight helps to maintain quality and consistency and prevent the inadvertent production of privileged material. Dividing the review team into groups in which an attorney is responsible for non-attorneys allows non-attorneys instant access to the attorney's experience as well as real-time feedback on privilege, work product and substantive document coding questions.
As corporate counsel continue to push for cost savings, firms anaging document review projects must adapt and evolve by proposing cost-effective options. One way to provide cost savings to clients includes using non-attorneys to perform the first-line document review. However, when doing so, it is important to implement necessary safeguards to preserve the defensibility of the document review while providing maximum cost savings to the client.