Why Do GCs Pay Lawyer Rates for Document Review in eDiscovery?
On Thursday, the Second Circuit called into question whether the document review work of contract lawyers in eDiscovery is “legal work”. Read about it in the Wall Street Journal or Bloomberg Business of Law. The WSJ quotes a Big Law partner commenting on the case
‘a trend toward classifying [document review] as non-legal’ could result in clients refusing to pay for skilled workers to take on such assignments, causing the work to ‘get pushed down to the lowest common denominator.’
This comment raises interesting questions:
Why do GCs pay lawyer rates for document review in eDiscovery?
My answer: mistake of fact. In my March 2014 post I asked Is a JD Really Necessary to Do Document Review? and answered “no”. The “lowest common denominator” comment, prompts a re-visit.
Is there a legal reason to use lawyers for document review?
I’ve asked litigators this often; only once did I hear yes. Leading eDiscovery expert Ralph Losey commented on my prior post that “[e]thically the person making relevant or not legal judgments must be a licensed attorney or paralegal” Ralph did not cite authority and others disagreed, some noting reviews conducted by paralegals. The ethics rule that seems relevant to me is ABA Formal Op. 08-451 (2008), which says lawyers may delegate work so long as they adequately supervise it.
Does law school train for document review?
I learned nothing in law school that would help. My year-long civil procedure class barely touched privilege. Knowing substantive law does not help to determine the responsiveness of fact-specific documents to production requests.
Do we have data showing lawyers do a better job than, say, community college grads?
Ha! Little empirical evidence exists to support most law practice management questions. Look at all the lawyers who pooh-pooh predictive coding without any data on the reliability of lawyer reviews. In fact, several studies show machines do better than people. Might community college grads do just as well as lawyers. Those asserting lawyers do better must show their proof, not re-state their supposition.
Will the “lowest common denominator” yield adequate review results?
However we define “lowest”( e.g., an associates degree), it is easy to set up controlled tests to answer the question. Were I responsible for a litigation budget of millions or more, I would run statistically valid tests to find the answer. In short, one would code a document set to “lawyer standard” then have other groups code the same documents and compare the results. If these tests found that community college grads did just as well as Big Law associates or contract lawyers, I could save my company big bucks. If such tests let me deploy lower cost resources, the ROI on it is potentially enormous. Could any CFO object to such testing?
Might GCs be leaving money on the table elsewhere?
Suppose my test found using associates degrees sufficed. Then we would have to wonder if GCs leave money on the table elsewhere. I will not speculate further but will close with two final questions. Does the GC have a fiduciary obligation to the corporation to ask more tough questions about how their law department and outside counsel operate? What is the obligation of the GC to support with facts long help suppositions?
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