It was the worst of times, it is the best of times
The historic practice of disclosure in England and Wales is something many lawyers might wish to forget. The profession recalls the days and nights spent in windowless rooms reviewing truckloads of paper documents, under the pressure of crushing deadlines and fear of error and reprisal. So between then and now, what has changed? The short answer is technology. The tech we interact with on a daily basis creates documents (within the meaning of documents in the Civil Procedure Rules) at such rates and volumes that edisclosure solutions were developed to facilitate their review and empower lawyers to continue to meet their disclosure deadlines and discharge their professional obligations.
In an abstract way, very little has actually changed. The difference is how: how lawyers use edisclosure tech to achieve those ends, and how easy-to-use technology, built for lawyers, has transformed the way they find the evidence they need ever more efficiently and cost-effectively.
For many, the genesis of edisclosure technology is trudgingly familiar, so I won’t linger on it. It is, however, useful to set the scene for the story I want to tell — the story of managed review — specifically DISCO Review; one of the most efficient and cost-effective edisclosure solutions you might have never used.
A tale of three reviews
The market is awash with edisclosure terminology, and it’s beyond this blog to rationalise them all. However, there are three review types that are helpful to distinguish in order to set the story of managed review in its context:
- Linear review — this largely replicates the hands-on document-by-document process of traditional disclosure, but in a digital format — with the assumption that all documents will be reviewed
- Prioritised linear review (or technology-assisted review 1.0) — a basic algorithm pushes likely responsive documents to the fore to increase recall results, but also assumes all documents will be reviewed
- Technology-assisted review 2.0 — software powered by artificial intelligence identifies patterns over the course of a review, so that data isn’t just prioritised by what is known at the beginning of a review (a date range or search term, for example), but what reviewers continue to learn as their matters progress. Documents are prioritised by the most up-to-date information available, until reviewers stop seeing responsive documents in their batches and can conclude the review before putting eyes on every document. This agile process is capable of helping lawyers make more informed decisions even earlier in a case, decrease the overall cost of document review, and meet difficult disclosure deadlines.
A twist on a classic tale
Traditional managed review isn’t a process in itself, but the commoditised selection of one, or more, of the review processes explained above, built around the requirements of a matter. For instance, it might be that disclosure in a matter necessitates a full linear review, or a blended review process using tech to prioritise sets of documents and linear review to review those documents.
However, the traditional commoditization of the review process by managed review providers can feel like an unjustifiably expensive extension of the issue facing firms — throwing more bodies and more money at the data to simply “get through.” In the traditional model, you’ve simply moved the problem to an outside provider who does nothing to address the surge of data, concerns over human-error and quality control, and often uses antiquated and sluggish workflows at eye-watering cost.
So, what of managed review that’s more than just moving the problem from post to post — that guarantees efficiency, control, and cost?
Enter managed review, not as a service, but as a solution. If that sounds like scholarly semantics, it isn't. The service offered by your review provider should operate as an edisclosure solution — its roster of veteran reviewers should use best-in-class, AI-powered technology to find evidence on time and on budget.
A far, far better thing (than you’re used to)
So how do you know if the tech your review provider uses is best in class? How do you know that their reviewers are more than just contractors, but an intrinsic extension of your case team?
When it comes to edisclosure technology, make sure what they’re using is capable of:
- sub-second searching
- conditional tagging
- using artificial intelligence to identify the characteristics of responsive documents to reveal similar documents
- detecting tagging errors as soon as they happen
- scaling to requirements
- protecting data
- providing digital / network access controls on both a macro and micro level
Thereafter, make sure that the reviewers aren’t moonlighting between projects (an unfortunate risk in the remote-work paradigm), and instead are channelling their expertise appropriately. This will ensure consistency of work product, lower ramp times for reviewers, and ensure review engagements can start, and finish, on time.
Finally, make sure your review managers are more than administrators, that they’re empowered and trained to go beyond the requirements of simply keeping a project moving. They should be review veterans and certified power users, focused on delivering fast and accurate reviews, but also offering you insights and suggestions to improve review results and overall experience. They should drive clear communication protocols, and create tight feedback loops to mitigate mistakes early, save time, and ensure firms and their clients know exactly how their review is progressing.
Now, what I want is, facts (faster)
Dickens probably wasn’t talking about managed review in Hard Times, but the slightly amended opening line is one we’ve probably heard, or said, multiple times in the legal field. AI-powered edisclosure technology is now a fundamental asset in the race for efficiency and cost-effectiveness, of getting to the facts you need (and crunching through those you don’t) more quickly. So too is managed review. Today, a managed review solution represents the perfect confluence of veteran expertise and technological intelligence backed by shatterproof guarantees.
If any of this has piqued your interest, I’m glad. Managed review in England and Wales has come of age, and now represents defensible, repeatable, tech-empowered processes that reduce the cost, and overall review time associated with dispute resolution.
If your managed review provider feels like a Bleak House (last one, I promise) of missed deadlines, hidden costs, and infuriating support, there’s better out there, and it’s worth looking.