The evolving document review challenges and use cases

Legal, Compliance and Technology Executive Series

Of special interest to:

General counsel

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Legal technology executives

Chief compliance officer

Document review consumes 73% of corporate litigation budgets.1 Total review costs will likely climb higher because an array of investigative, compliance, data protection, privacy and internal control issues are driving up the need for document review, beyond litigation.

Inexorably, corporate law departments are adopting new and more efficient first-pass document review approaches that combine people, workflow and technology. This paper explores some of these leading practices and also important considerations for document review in cases that are beyond litigation, such as compliance due diligence, cybersecurity remediation and contract review.

1 Nicholas M. Pace and Laura Zakaras, “Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery,” Rand Corporation (2012), http://www.rand.org/content/dam/rand/pubs/monographs/2012/RAND_MG1208.pdf.

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A well-coordinated plan is essential when multiple challenges convergeA multinational pharmaceutical company had a multidistrict litigation that comprised more than 1,500 plaintiffs and would have required two years to collect, process, host and evaluate tens of millions of potentially relevant records. The company enlisted the support of a managed document review provider to retool its traditional review methods in order to handle large-scale review and reduce reliance on human review through the use of technology. Utilizing technology-assisted review (TAR), combined with other advanced analytics techniques and custom workflows, the review team was able to accelerate the review and redaction of more than 20 million documents and eliminate several million more non-responsive documents at the same time. The use of analytics also helped the team to narrow down the documents that contained sensitive health information, hence significantly reducing the efforts needed to protect privacy information.

The team designed technology-enabled workflows to accommodate more than 300 review professionals who conducted reviews in multiple cities and languages simultaneously. The custom workflows not only focused on the scale required but also the need for efficiency in order to manage staffing and budget constraints that are typically associated with multi-language, complex global reviews. An important consideration in choosing the appropriate technology and workflow was to create a repeatable process to respond to individual plaintiff by producing communication details between the company and plaintiff’s medical providers, as prescribed by the court. Through the technology-enabled workflow, supplemented by human review, the company was able to achieve scalability and consistency while meeting production deadlines and saving costs simultaneously.

• Josh Hogue Principal Ernst & Young LLP josh.hogue@ey.com

• Chandan Sarkar Senior Manager Ernst & Young LLP chandan.sarkar@ey.com

• Erik Gibson Senior Manager Ernst & Young LLP erik.gibson@ey.com

Authors

3Legal, Compliance and Technology Executive Series |

Balancing speed and accuracy in a cyber breach responseA global technology company needed to categorize more than 50,000 files that were affected by the breach in order to assess damage and develop appropriate response strategies.

While a typical review uses an average of 10-15 issue codes, this review required approximately 30 issue codes to classify the stolen data. The issue codes reflected various categories of personal and business-sensitive information and jurisdictional classifiers. A large number of issue codes typically compromises speed and quality. By using targeted searches and a sampling-based quality control method, the review team was able to achieve the pace required for breach remediation and meet the company’s demand for a thorough categorization of affected documents to support a comprehensive impact assessment. This approach ultimately enabled the company to quickly implement a recovery plan and reduce the risk of future threats.

Document review team flexes its muscle in compliance investigationWhen a Fortune 100 manufacturing company launched an internal investigation into potential deviations from its Foreign Corrupt Practices Act (FCPA) compliance policies, it faced a daunting challenge to review several hundred-thousand documents in two languages over a matter of days to meet a regulatory filing deadline. A “throw-bodies-at-it” approach wouldn’t work given the complexities of the requirements of different stakeholders. Legal counsel needed to establish certain key facts to meet regulatory requirements. The auditor demanded critical financial figures that would require in-depth analysis. Finally, business owners asked for minimal disruption to productivity, while keeping down the review cost.

The review team designed a workflow that combined human review with a technology suite comprising TAR prioritization and other advanced content/structural analytics techniques, such as content clustering and threading-for-batching. The review output, including critical facts, figures and documents, was sent to the stakeholders via a central reporting portal in real-time. The team used statistical methods to validate the output and documented the validation results to serve as review back up. In the end, the company was able to submit a well-informed regulatory filing by the deadline while also meeting the requirements of other stakeholders.

Managing unique contract review challengesAn automotive company’s internal audit department needed to extract contract terms from more than 35,000 agreements and organize them for mass reporting within two weeks. A review team of 50 reviewers in two countries designed and executed a custom workflow that used an internal database of contracts to identify the contractual terms in the agreements and feed the output into an analytics tool for further processing.

The challenge came from not only the large volume of contracts — tens of thousands — but also the requirement that reviewers needed to work in two separate applications, with one residing behind the company’s firewall and the other on an externally hosted platform. One application was used for contract review and the other was used to identify specific attributes and information in the contracts. The review team used analytics technologies to integrate the review results into easy-to-understand formats for the company’s compliance team. This is an increasingly common challenge due to new regulatory and legal requirements. The recent lease accounting changes from the Financial Accounting Standards Board that require companies to inventory their contractual obligations have resulted in a surge of contract review needs.

EY | Assurance | Tax | Transactions | AdvisoryConclusionAs litigation costs are projected to increase, compounded by the fact that regulatory and security issues are also resulting in more document review needs, the document review industry has seen a closer convergence of technology and human resources. It is crucial for organizations to rethink their review approaches, particularly when quick turnaround is required and budgets are limited. By creatively combining technology, people and workflow, organizations can overcome challenges brought about by information deluge and stringent regulatory requirements, yet meeting deadline and achieve cost savings. There is no longer a one-approach-fits-all in document review.

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This material has been prepared for general informational purposes only and is not intended to be relied upon as accounting, tax or other professional advice. Please refer to your advisors for specific advice.

Any reference to legal rulings and interpretations of their impact is not legal advice. You should consult your legal advisor for guidance on how the cited cases may be applicable to or impact your situation based on the facts of any particular matter.

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