In a piece called “Legal Olympics Update: Outsourcing E-Discovery Sliding Down Slippery Slope, at Record Speed”, posted on February 16, 2010 by Gabe Acevedo, the author commenting on the ABA Ethics Opinion issued in August 2008, states

“LPOs had a right to be celebratory about ABA 08-451. After all, never in the history of the United States was there ever an ethics opinion of any Bar Association that had done more to undermine the standing of both American attorneys and our practice of law.”

The issue of outsourcing and off-shoring of legal services will continue to be a hotly debated topic with proponents pointing out the increased capacity and lower economics of alternative staffing models.  Detractors may point out that there are time zone communication concerns, export control issues, language barriers and nervousness of sending evidentiary materials to some remote island somewhere”.  I believe some of these issues are noise and some have legitimacy.  That the outsourcing of legal services, specifically document review, undermines the American legal system, wow, that is pretty extreme.  But, is this a selective point of view?

While I was employed in-house as a discovery manager, the topic of outsourcing was often discussed and debated.  The early use of domestic contract attorneys performing document review was viewed as a threat to law firm revenue, in-house jobs and quality of work.  I believe that these same threats from the past decade are amplified in greater decibels today when the services are offered by providers that are located in India or the Philippines.  The legal argument, not the business one, is that it could be unethical to send document review work overseas because it exposes the client to poor work product.  So, does this assume that the traditional domestic review model is to be trusted just because it is American brand?  Let’s explore this further.

Later in his blog, Acevado states while citing the ABA Ethics Opinion “I want to point out one bright spot in ABA 08-451: one line in their six-page opinion that I greatly wish they had expanded on. Specifically with regard to supervising outsourced work completed by foreign attorneys: “What it does mean is that, in such circumstances, it will be more important than ever for the outsourcing lawyer to scrutinize the work done by the foreign lawyers - perhaps viewing them as non-lawyers - before relying upon their work in rendering legal services to the client.” Exactly. But how is it possible for supervising attorneys to “scrutinize” foreign attorneys or non-lawyers on an e-discovery review where 5, 10, 20+ million documents are involved? Let’s be real. You really can’t.”

Coming from the world of Six Sigma I don’t view this possible defect as being a “foreign” issue; it is a process problem.  In my mind the slippery slope that Acevado is going down is this – foreign lawyers = non-lawyers = poor quality = ethical breach.  In the world of quality measurement it is important to perform some analysis to determine both the key inputs and outputs.  Training, supervision, quality control procedures, productivity rates, technical content of documents, cost are just a few of the key inputs that have a correlation to the design and delivery of a successful document review project.  The physical location of the reviewers is a consideration in any staffing plan but to assume that “foreign lawyers” unto themselves is a defect to achieving success is just not a reasonable argument.

Acevado offers one other angle “A law firm decides to outsource a document review that contains a universe of 200,000 documents (which is an incredibly small review by today’s standards). Imagine that after the firm outsources it to cheaper non-lawyers, they would have to go back through almost every document again to make certain what they were handing over was in order. Basically two people would be doing the work of one person, costing their client more money than if they had just outsourced this to licensed attorneys in the first place.”

So again we have the author’s position put forward that foreign lawyers are non-lawyers.  Further, we now have the argument that any cost savings gets lost because the supervising “real” lawyers have to perform review or rework of the foreign “not real” lawyers.  Let me say that this duplication of effort issue is as prevalent or more prevalent in the domestic staffing model.  I have witnessed it first hand.  So, once again, I contend, this is a process defect not a “foreign” one.

Let me offer a different and I believe refreshing perspective that comes from my colleague Beth Pollock who worked as a supervisor of document reviews within large law firms.  Beth authored an article titled “Confessions of a Contract Reviewer”, BNA Digital Discovery & E-Evidence, February 1, 2010.  Speaking on her past experience Beth states “Contract reviewers are wonderful, hard working people. However, through no fault of their own, they are in a bad system, which does not necessarily foster the highest achievable level of quality. Many people still mistakenly think that a focus on quality adds too much to the discovery project cost. It does not. The right quality process increases value or it is not a quality process. When using a good process in review, costs of $20 per document and $7 per document by two different law firms were reduced to $2.40 a document, including certification. It is all about the process”.

Beth offers a few clues as to how to achieve this “Over the past few years, I have worked in an emerging and alternative economic model which is dependant upon measurement and process, designed to address the growing problem of client frustration due to rising costs spurred on by a lack of control in the discovery phase of litigation. The process is designed to give the end-point client control and predictability, as well as a high quality, low cost outcome.”  The argument is made for statistical sampling and integration, not a cutout, of document review within the EDRM model.  “Proper sampling gives you a way to view and test the whole, economically, and produces better, statistically valid results.”

So if costs can be contained, cycle time can be reduced and the quality of work can be confidently affirmed why don’t we embrace the use of good process in the document review phase of discovery?  I would offer the following:

1. Resistance to change
2. Implementing good process is a hard thing to do
3. It sounds complicated
4. Most domestic staffing providers don’t offer “process”; they offer American trained lawyers at billing rates lower than law firms

And, to go out with a bang for the blog entry,

5. A good process with quality controls takes away the “foreign” lawyers are the problem argument

About Jim Michalowicz

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