e-Discovery document review: what should counsel outsource?

Earlier this week I blogged about placing the locus of control for e-discovery decisions in the right hands to ensure that the decisions made pass muster in court. To illustrate the potential impact of moving the locus of control for certain decision to an outsource partner let’s compare the document review solutions offered by H5 and Inference Data.

Gold standard counsel or expert linguists - who should take the lead? Photocredit: jeffisageek’s photostream

Gold standard counsel or Linguist - who should decide?

Both H5 and Inference enable users to improve results and potentially save vast amounts of money by teaching sophisticated software how to do document review faster and more accurately than human reviewers can. And the more the review process can be reliably automated, the more money is saved down the road because the amount of manual review is reduced. This all assumes that the software is trained correctly, of course. Which frames a locus of control question: Who’s best at training the software?

Last month I attended a webinar presented by H5. One thing that struck me as distinctive about H5 is their standard deployment of a team of linguists to improve detection of responsive documents from among the thousands or millions of documents in a document review. During the webinar I submitted a question asking what it is their linguists do that attorneys can’t do themselves. One of their people was kind enough to answer, more or less saying “These guys are more expert at this query-building process than attorneys.” Ouch.

I’ve long prided myself on my search ability (ask me about the time I deployed a boolean double-negative in a Westlaw search for Puerto Rico “RICO” cases) and I’m sure many of my fellow attorneys are equally proud. However, I know people (or engineers, anyway) who are probably better at search than I am, and I know one or two otherwise blindingly brilliant attorneys who are seriously techno-lagged. More importantly, attorneys typically have a lot on their plates, and search expertise on a nitty-gritty “get the vocabulary exactly right” level is just one of a thousand equally important things on their minds, so it’s not realistically going to be a “core competency.” So I can see the wisdom in H5’s approach, although I wonder how many attorneys are willing to admit right out loud that they are better off outsourcing this competency.

The other side of the H5 coin is represented by Inference Data, which offers a tightly designed software solution which enables attorneys themselves to become the locus of control for search. For counsel with the proper training and technical aptitude, this strikes me as a killer combination, placing the locus of control — teaching the software to find the right documents — in the hands of the attorney who is the “gold standard” subject matter expert.

I can see where, depending on a number of different factors, either solution might be better. I encourage anyone facing this choice to make an informed decision about which approach leads to the best results rather than relying on their knee-jerk reaction.

e-Discovery outsourcing 101: who makes which decisions?

Because e-discovery is complex, and the penalties for screwing it up are significant, the following choice should be considered periodically by attorneys, clients and IT people involved in e-discovery: “Do we do this piece of the project with the people we have already, or do we add people to our payroll who do this, or do we bring in an outside partner to do this?” This is when the IT people reading this post will start muttering the cliché truism “Build or Buy?” which means choosing between “do it ourselves” and finding a pre-packaged solution.

In a generalized “leadership” or “management” frame of mind the basic choice is: “Do, Delegate, or Dump.” I am fond of characterizing this choice as the assignment of the locus of control for decision-making, where an important consideration is who will do the best job of making the decisions once given that responsibility.

  • “Do” = Must I make a particular set of decisions myself – are those decisions an essential part of my role in the organization, and am I the one with the right information and motivation to make these decisions?
  • “Delegate” = Can someone else do just as well, or perhaps a better job, with making this set of decisions, especially after making these decisions became an essential part of their role?
  • “Dump”: should we even be in the business of making these decisions at all, or can we just drop that issue off of our plates somehow?

For example, one can dump having a company picnic to save money. One can’t dump bookkeeping, however, even in a very small company. But even in a very small company a leader can usually delegate or outsource primary responsibility for bookkeeping and expect to get good results while focusing on core competencies of the business such as production, customer relationships, and motivating team members.

Ultimately the choice boils down to this: Do I want to possess and maintain expertise in making certain decisions, at a certain level of granularity, as a core competency? If yes, then I must make it a core competency, which means investing the time, attention, and education it takes to do it right. If no, then I should bring in someone else who has that core competency and who is invested in doing it right.

In e-discovery, answering the question of what can be outsourced — or where to place the locus of control for decision-making — gets even more interesting since courts hold attorneys personally responsible not only for delivering high-quality document production results but for understanding and directing the process by which results are achieved. So the question becomes: Will attorneys generate better document production results when they personally control more of the process (for example, by personally, hands on the keyboard, deriving and executing search methodology)? Or, will they generate better results by collaborating more with outsourced experts, directing and supervising but delegating more of the hands-on decisions?

More than a few attorneys reading this might find that the choice is not as cut and dried as they think. In my next post I’ll explore this choice by applying the core competency / locus of control standard to competing document review automation solutions from Inference Data and H5.