Document review is expensive, and data sets are growing exponentially larger every year. There is more information, the stakes are higher and resources are dwindling. A perfect storm of litigation is approaching, and if legal teams cannot improve the way they gauge the productivity, efficiency and accuracy of their members, with real-time metrics that help to control costs, there will be a dramatic sea change.
The Rand Institute for Civil Justice highlighted earlier this year in Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery that review for relevance, responsiveness and privilege constituted 70 percent or more of the discovery cost in more than half of the 44 cases it studied, and that the cost of review ranged from $1,800 to $210,000 per gigabyte depending on the complexity of the matter.
Just a few years ago, a database with one million documents was extraordinary, and $210,000 per gigabyte for review was unfathomable. Today, experienced data managers barely take notice of a data set that size. While they are trying to reduce the total number of records available for analysis, the figures remain incredibly high.
There are many initiatives to combat this trend, from advanced collection and culling tools to predictive coding and technology-assisted review. They all, however, require individual input and analysis. Until those participants in the process are operating at their optimal level of efficiency, providing the best possible results in the shortest amount of time, none of the innovations will reach their full potential.
It is, after all, a revolution of quality. In order for a legal team to conduct a truly effective review and ensure that its members are delivering superior results, they must avoid repeating mistakes caused by endemic misunderstandings in the data and monitor throughput at every level.
Evaluating Pace to Meet Increasingly Compressed Deadlines
Litigants are waiting much longer to pursue and defend their matters, hoping for settlement based on advancements in early case assessments. As they continue to delay, the pressure to act when settlement fails is a significant factor in preparing for trial.
In addition, new and more complex government regulations with wide latitude to request an array of documents are causing counsel to revisit their review procedures. Finding alternate methods for increasing the speed of review without necessarily replacing humans with technology requires optimization of that individual effort for collective success.
Quality Control in a Market that is Hypersensitive to Near-Perfection
While quality control has become a paramount issue in modern review, it has historically been more of an art than a science. Vigilant team leaders spot check, reinforce and refine; however, they cannot be everywhere all of the time. This is especially true in matters that employ scores and even hundreds of reviewers over lengthy periods. For this reason, making review a science and an art represents the future of modern discovery.
Legal teams at the highest levels must be as aware as the most junior lawyers of how effective and efficient each member of the team can be. There is no tolerance for missed documents or minor mistakes, and courts have consistently shown minimal lenience for shortcomings.
Managing Deadlines and Personnel
For those reasons, projects that operate at anything less than optimal efficiency raise the specter not of failure, but of a disappointed client. That disappointment could have a significant long-term impact. Legal acumen alone is no longer sufficient to satisfy the demands of hyper-aware and controlling corporate counsel.
To satisfy their constraints, legal teams must manage deadlines and personnel using every analytical tool at their disposal. That effort will ensure adherence to strict timing and resource allocation. With both the clients and their lawyers at risk, there is no alternative but to share the commitment to excellence.
Corporate clients expect to have the capability to monitor the activity and progress of their outside counsel. Tools that immediately highlight inefficiencies in individual performance or team efforts will yield a more effective and high-value process.
With the availability of customizable calculators permitting instantaneous adjustments, there is little leeway for any shortcoming. The ability to archive data permits historical comparisons to accelerate decision making and foster mobility for those working off-site.
In-house counsel expect more granular reports and the ability to respond to questions about them with absolute accuracy in an instant. That expectation is only growing stronger and more common. As a result, legal teams that cannot provide a more rapid reaction time will begin to erode their reputation and potentially impair their client relationships.
Today, success is about the numbers. It is readily apparent from containing costs and measuring that savings to streamlining staffing and gaining the maximum value from each pool of talent. In fact, with the increased use of contract lawyers, law firms want to ensure that they are maximizing their productivity and minimizing wasteful billable time.
Given the current hyper-competitive environment, firms want to present their clients with a strong review solution and guarantee its results. They want to highlight that in addition to mastering the substantive nuances, they are sincere about addressing the logistical challenges associated with modern litigation.
Numbers help identify individuals who are struggling and operating at a slower tempo, but it is often too late to make meaningful changes with traditional forms of evaluation due to the lag time. Those using sophisticated analytics to scrutinize review can, however, evaluate the total number of documents team members are examining on an hourly or daily basis simply by clicking on tabs within a single reporting system at any moment in time. Advanced tools will also allow managers to verify the specific documents any particular reviewer was reading during the time period under scrutiny.
This is critical since different reviewers may be responsible for appraising records with varying levels of sophistication. One may have volumes of obviously non-responsive documents, warranting a quicker rhythm, while another may be forced to thoroughly evaluate each file because of its sensitive nature or the inclusion of key terms. Other than verbal reports from the reviewer himself or spot-checking quality control protocols, there has traditionally been minimal opportunity to make this distinction. With the implementation of review metrics, anyone can monitor who reviewed which records at whatever time without restriction.
The ultimate goal is to ensure efficiency and accuracy, with cost savings serving as the primary benefit. Yet, the trend toward enhanced reporting requirements has also made accounting for the savings and highlighting proactive initiatives to see them to fruition equally as important.
Historically, details related to the pace of review were only available in raw form and accessible only by exporting unformatted data to Excel and by running complicated reports. Supervisors then needed to convert those reports into readable documents that they could share and study.
Today, every point is fully integrated with popular platforms like Relativity and fully interactive for unprecedented accessibility. Managers can manipulate the data; leverage it to set strategy; and use it to support staffing or software changes. The most effective tools often study what was not done as closely as what any individual accomplished – to underscore idle time that may indicate a lack of productivity. It is the key to radical efficiency.
This shift begins by focusing on organic evolution of the workflow and a real-time analysis of the process. By doing so, team leaders can offer instant feedback, promote accuracy, streamline management and increase quality control. They may even be able to eliminate second-pass-review overturn rates.
Doing so creates an entirely new form of on-the-job training that supplements the basic guidance each reviewer receives at the initiation of every project. It represents the convergence of skill and statistics, where information and ability set the foundation for an unprecedented type of discovery.
It is only through this level of advanced and ever-changing instruction that legal teams can promote the type of dynamic analysis necessary in an information-heavy environment.
Start by monitoring your daily document-per-hour rates and conducting granular comparisons on a short- and long-term basis. This will ensure consistency and quality. Track the substance of documents reviewed, in addition to the total number, to make informed decisions.
When evaluating individual performance, study logged-in minutes versus active minutes to measure productivity. A team member working part-time may, in fact, be more valuable than one working 70 hours per week, depending on his or her ability to process the information he or she is assessing. If there is a discrepancy in the amount of time one is spending and the volume of material he or she is able to review, immediately address training concerns.
As part of that initiative, assess overall or individual document overturn rates (where the original coding designation is changed). Leverage dashboard features to evaluate the percentage of documents reviewed for the entire project and the proximity to the deadline after calculating the number of hours worked, total number of reviewers and days for review. And use automated alerts to inform users of their progress toward preset goals relative to their peers.
There are many strategies for reducing the number of documents available for review and to increase the influence of technology-assisted review to reduce the total cost of discovery, but the human factor remains an essential component of the practice. Those teams that focus on their performance will produce a radically more efficient discovery process.
For more information on Radically Efficient Review, click below or go to http://www.kiersted.com/2012/08/kiersted-introduces-new-technology-to-radically-improve-review-management/.
 Nicholas M. Pace and Laura Zakaras, Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery, Rand Institute for Civil Justice (2012) at 25.
 Id. at 28.
George Kiersted is President of Kiersted Systems. With an extensive background in information technology and application development, he identified the need for the special application of IT to the law and litigation sector more than two decades ago. Since the founding of Kiersted Systems in 1984, he has built the company into a proven leader by providing advanced technology services to law firms and corporate legal departments. The services offered include electronic discovery processing, forensic data collection, hosted review services and consulting related to matter management, electronic billing and legal hold.
Kiersted has offices and data centers in Houston and New York City. For more information, visit www.kiersted.com.