In my prior post, I summarized two recent articles about discovery document review: DuPont’s going offshore and BigLaw’s move to contract lawyers. Which is better – onshore or offshore review? 

The choice is purely an empirical question, meaning a decision driven by hard data: the cost to review each document, adjusted for accuracy. You can argue over how best to measure cost and accuracy, but it’s hard to see how else to decide. (I assume that ethical issues, if any, of going offshore can be resolved. I also leave for another day whether software is not an even better approach than lawyers, onshore or off.)

So the rational general counsel should ask firms for statistically reliable cost and accuracy measures. Firms not already tracking these are probably not effectively managing the review process.

Lawyers often don’t consider alternatives and, when they do, seem to debate endlessly. But why argue when you can measure? Sure, going offshore may require more supervision; maybe even travel costs to send US lawyers overseas to supervise. But finding contract lawyers and paying agencies is not cheap. I could go on about many costs. The point is, stop debating and start measuring.

If inside counsel lack the data or analytic horsepower, then retain legal technology or other consultants or borrow financial analysts from other corporate departments. With the millions of pages to review and enormous costs, production- and factory-like discipline is essential. What are we waiting for?