Duty to Supervise: How Do You Know Your Outsourced Document Review is Done Well?

June 16, 2011 admin

Were you surprised last week by the major malpractice claim filed against a “Big Law Firm” for “failure to supervise” its contract attorneys—allegedly resulting in the improper production of some 3,900 privileged documents to the federal government? [1] If you are anything like us at Pangea3—and you have worked diligently for years to develop and refine processes to prevent just such a situation—then this lawsuit came as no surprise. If you—inexplicably—have had other things on your mind for the past decade, continue reading on to ensure this fate does not befall you.

As reported by The American Lawyer, this malpractice case not only highlights outside counsel’s ethical duty to meaningfully supervise its agents, but demonstrates the potential consequences of failing to do so. The article notes that “while it’s understood that lawyers need to supervise vendors, the standards for that supervision remain imprecise.” At Pangea3 we agree: that’s why we have rigorously studied all available ethical guidance and have worked to establish procedures which—we believe—ensure supervision well outside of any grey area. See, e.g., ABA Formal Opinion 08-451, Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services, Aug. 5, 2008 (providing ethical guidance and describing legal outsourcing as a “salutary” trend in our globalized economy).

So how does Pangea3 ensure that outside counsel in our cases provide supervision above and beyond the requirements set forth by these “imprecise” ethical authorities? We achieve this via overlapping processes in which our outside counsel partners are required to:

  1. draft the review “playbook,” with input from Pangea3’s experienced consultants, which becomes the bible of the review process for our attorneys;
  2. lead the initiating “kickoff” call, which walks our reviewing attorneys through the “playbook” and numerous example documents;
  3. respond in real-time to specially crafted “escalation emails” created by experienced reviewers and circulated almost daily, which distill open review issues to their most basic elements. This body of decisions by outside counsel regarding borderline documents creates a constant flow of knowledge transfer between our reviewers and outside counsel, and becomes something akin to an easy to follow “law of the case” that the review team’s first line reviewers follow, and that the “quality checkers” must use to ensure results are consistent.

These methods, and others like them, seamlessly integrate outside counsel into our process from the beginning to the end of each review. They also ensure that outside counsel necessarily exercises meaningful supervision over our review teams.

Furthermore, Pangea3 is the best in the business at ensuring review accuracy. We achieve this uniquely high accuracy by: (1)hiring talented, full-time attorneys after a rigorous vetting process including background checks; (2)providing our attorneys with a clear professional career track; (3) investing heavily in our employees’ development with thorough, rigorous training; (4) providing leadership by U.S. litigators experienced in e-discovery, both on the ground in India, and in the U.S.; (5) utilizing Six Sigma-inspired methods to report on and eliminate errors; and (6) quality-checking, which is more thorough than any other review company—on- or off-shore—we are aware of. Our model does not turn on cutting corners to go faster; rather, our processes ensure that our obsession with quality does not impede our efficiency.

Finally, we adopt a risk-averse approach to privilege review, which locates and codes for “potentially privileged” documents rather than outright privileged ones, and requires a second-level review by outside counsel in order to yield a final privileged set.

If your provider is not making document review this safe and easy for you, maybe it is time to get to know Pangea3.

Reference and Endnote

[1] Company Alleges E-Discovery Malpractice by McDermott

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