ACCOUNTABILITY CANNOT BE OUTSOURCED

 

 

by Julia Staunton Hardinger, Esq

Some Real World Tips for Supervising Document Review

 

Federal Rule of Civil Procedure 26(g) states that, “Every disclosure . . . and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name . . . By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry. . . it is complete and correct as of the time it is made . . .”  

In the last few years, the legal community has been bombarded with an explosion of discovery vendors who are rapidly expanding the scope of their services.  Many of these staffing agencies and consulting firms now offer “end-to-end” discovery services that go way beyond the mere furnishing of contract attorneys or document review softwareundefinedthey now including non-discreet services such as the “management” of the entire discovery process. 

     What does this mean for the attorneys and clients who purchase these all-inclusive services with respect to the federal and state discovery rules?  Can the attorneys just sit back and wait for the production discs to be delivered to their desks?  The answer is a definitive “no.” 

     The American Bar Association and all of the state and local bar associations who have examined the outsourcing issue all arrive at the same conclusion: outsourcing is permissible as long as the attorney of record remains responsible for the work performed and rigorously supervises those performing the work.  Unfortunately for the practitioner, none of these bar opinions attempt to tackle the crux of the issue by articulating a clear definition of what constitutes adequate “supervision.”   

     So, as the attorney of record, how do you maintain actual control of the discovery process and remain genuinely accountable for the work done by the outsourcing vendor?  How do you confidently certify that, to the best of your knowledge, the work done largely by someone else is complete and correct? 

     Stepping in where the bar associations have fallen short, we have developed a list of rules to follow for attorneys who wish to outsource part of the discovery process while still meeting the high level of

 professional responsibility imposed by the ethics rules.  We hope that this information provides some concrete guidance to practitioners on the specific topics in which the bar association decisions have remained vague.   

 

Do Not Hire A Substitute Supervisor – All of these newly emerging document review vendors offer “project managers” or “team leaders.”  But hiring non-attorneys to oversee the daily operations of a legal document review is highly suspect. If you hire someone to supervise or manage your project, you are either not taking full responsibility yourself, or the client is paying twice for the same services.  (Remember, if the company you hire is not a law firm, the supervisor they provide is not lawfully rendering legal advice, even if they have a JD).  It is OK to hire an administrative assistant to help with some of the staffing, organizational, or logistical details, but that person should not have any supervisory authority over the discovery team or attempt to answer any substantive factual or legal questions.   

 

Know Your Case and Know the Law – It may seem obvious, but if a document review team is relying on you to teach them about the case, you have to know the facts and the applicable case law well enough to accurately convey it to your team.  In addition, you must know the ethical rules and regulations regarding outsourcing in your jurisdiction.  The oft-cited ABA Formal Opinion 08-451 regarding outsourcing is a useful guide, but may not be controlling in your jurisdiction.  For example, in the District of Columbia, more specific guidance can be found in DC Court of Appeals Rule 49, DC Committee on the Unauthorized Practice of Law Opinions 6-99 (June 30, 1999) and 16-05 (June 17, 2005), and DC Rules of Professional Responsibility Rule 5.4.  

 

Personally Select Your Team – Staffing agencies do an excellent job of providing a convenient pool of potential contract attorney and paralegal candidates.  However, as the person ultimately responsible for the work completed by the team, you should review the resumes, interview and select the team personally.  In some jurisdictions, like the District of Columbia, the staffing agency is prohibited from the final selection and supervision of the review team (see DC UPL Opinion 6-99). Throughout the process, you must also maintain the authority to hire and fire as you see fit. 

 

Conduct Extensive Quality Checks and Make         Adjustments Accordingly - On one hand, the quality checking phase is incredibly simple, right?  If you’ve selected a top-notch team and trained them well, they will not make many mistakes and the supervisor can review a handful of random documents and pat himself on the back for training the team so well.  Unfortunately, that is not how document reviews work.  No document review has ever been accurate and consistent from the get-go. 

 

Personally Train Your Team - You should take responsibility for training the team in person, even if the review team is located across town or across the globe. Resist the urge to do a “quick start” training with a slim list of bullet points, key words or ideas.  If you are not ready to perform a more substantive training session, you are not ready yet to begin your review.  A genuine supervisor will train the review team thoroughly in an interactive forum.

 

Give the First Assignment to Yourself – Someone who has never played a musical instrument would not make a good conductor.  Similarly, in order to be a credibly supervisor on a document review, you have to get some hands-on experience.  Depending on the size and scope of the review, sit down and code documents yourself for an hour, a day, a week or even a month.  Are the review parameters reasonable?  What is a reasonable speed at which the review team should be working?  Do you need to update or revise the training materials drafted before the review?  There is no substitute for rolling up your sleeves and doing the work you expect others to do for you.  The knowledge you gain during this step will greatly increase your credibility with your review team and is the only way you can honestly assess the work they do for you. 

 

Design Tracking and Status Metrics- Using your experience in reviewing and coding documents, what are the expectations that you have for your review team?  What is the slowest acceptable rate of review?  Is there a pace that would be too fast?  How will you calculate accuracy?  Almost all review software will automatically generate reports regarding number of documents coded in any given time period and allow for a comparison among team members, but the important part is how those reports are interpreted.  And as a supervisor, you will have to design these metrics with consideration of the discovery deadlines and review objectives set by trial counsel and the court. 

 

Maintain Constant Contact with Your Team - There are many good excuses that attorneys give for not working directly with their review team: too busy with other responsibilities, not enough physical space close to the office, or fear of leaving their office for an extended period of time.  However, there is absolutely no way to credibly and effectively supervise a document review team (especially a large team of anywhere from 10-100 attorneys) without physically seeing them every day.  As an illustration, assume you have a team consisting of 15 reviewers working approximately 50 hours a week (a relatively small project in the world of e-discovery).  That team is working over 3,000 hours per month.  Do you really think that you can adequately oversee 3,000+ hours of work by stopping by for an hour or two a few times a week?  As a supervisor, you really should make the commitment to be with your team full-time, and probably even more.

 

Conduct Extensive Quality Checks and Make Adjustments Accordingly- On one hand, the quality checking phase is incredibly simple, right?  If you’ve selected a top-notch team and trained them well, they will not make many mistakes and the supervisor can review a handful of random documents and pat himself on the back for training the team so well.  Unfortunately, that is not how document reviews work.  No document review has ever been accurate and consistent from the get-go.  It just does not happen; there are too many unknowns at the beginning of a project.  (Let’s face it, lawyers, if we knew all the facts at the beginning, and where to find the important documents, the discovery phase would be a mere afterthought.)  Furthermore, as the case develops, issues and strategies change, priorities are revisited, new players emerge, etc.  Readjusting is inevitable.  The hard part is not just checking to see if there is a problem, but getting that problem fixed and making the necessary adjustments to steer the team in the right direction. This critical step absolutely cannot be outsourced.  If you are not quality checking and adjusting your review on a constant basis, you are not genuinely supervising your project.   

 

Personally Review and Approve all Discovery Related Invoices – You may have multiple vendors assisting with discovery tasks such as document collection, processing, hosting, software, staffing agencies, etc. The supervisor should not blindly approve bills and pass them through to the client.  Rather, the supervisor should have personal knowledge of the charges, be able to confirm that they are both reasonable and accurate, and be ready to take full responsibility in the event that any questions arise.  At a minimum, the supervisor should be confirming that each task is being performed at an appropriate bill rate, and that the hours being charged for such are reasonable and necessary.
     In summary, as the attorney of record, you have been retained to certify that you personally have performed a reasonable inquiry and, to the best of your knowledge, are making complete and correct discovery disclosures. 

 

The vendor assisting you will never be willing nor able to sign their name to anything.  Therefore, the supervision of a discovery project can not be ignored or outsourced to non-attorneys.  The attorney who neglects her job as a discovery supervisor is not only shirking her ethical duties, but is exposing herself and her clients to enormous risk.  In today’s world, conducting discovery may include taking advantage of a wealth of resources offered by staffing and technology vendors.  But, the attorney of record is always ultimately accountable. 

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