KPMG handles a lot of managed review these days, and Aileen Chan, managing director of the firm’s forensic technology practice, and Manfred J. Gabriel, a principal there, spend a lot of time working to make it function as efficiently as possible. That means keeping up with all the changes, focusing on reducing risk and trying to gauge where it could be going next. The interview has been edited for length and style.
We hear a lot about managed review these days. Law firms have historically done this in-house, however there’s been a shift to using outside providers. What precisely is managed review?
Manfred Gabriel: Managed review specifically means using contract attorneys and some technology to efficiently review the documents that parties are obligated to turn over in the context of e-discovery responses to litigation or other matters. The point of managed review is to decide what documents are responsive to the specific discovery request, to support the substantive case team, and to identify information that may be privileged, confidential, or otherwise protected. Document reviews used to be done in-house but are now done by managed review providers, such as KPMG and others. In the last five or six years, managed review has been on the rise as a more cost-effective, professionally project-managed alternative that can achieve quality and savings.
Why is managed review so critical to your clients?
Aileen Chan: Document review is one of the most expensive components of discovery, amounting to nearly three-quarters of all of discovery costs. Clients need to mitigate all of the possible risks associated with the situation they’re presented with – making sure that the appropriate information is collected at the onset of a matter; that the facts are uncovered and reviewed in a timely manner, so they can comply with the matter at hand; that they meet the court deadline; and that they have gained the insights to make the appropriate business decisions based on the facts gathered.
Gabriel: Managed review represents an opportunity to understand the documents, to make early strategic decisions about a case, whether, for example, to pursue it or to settle. That presupposes efficient access to the information, to the knowledge in the case, not just a rote, traditional review of the documents.
What makes managed review so difficult?
Chan: When managed review is required, you normally have a short time frame to uncover the facts needed for the results that you want. When I say short time frame, in our industry that typically means yesterday.
Gabriel: And if you consider how many electronic documents are generated in business these days, the numbers are tremendous.
Chan: So in addition to getting this enormous amount of data reviewed at a humanly impossible pace, you also need to manage all of the risk that’s associated with the situation. On top of that, the review needs to be completed in the allocated time frame in, of course, the most cost-efficient manner.
How has managed review developed?
Gabriel: In the early days of discovery, paralegals sat around a table in a conference room at a law firm reviewing paper documents. When electronic data became more prevalent and data volumes rose, we saw the rise of the temp attorney, many of them specializing in document review.
A parallel development was the introduction of technology. We started using search terms to find relevant documents more quickly and reduce the number of documents that needed to be reviewed. In the last few years, as document volumes and costs have continued to grow, project management and quality control principles have become the most recent wave of innovation. Since 2012, when we had a significant case approving the use of predictive coding or machine learning in document review, new technological approaches have eased the load of document review.
It is now a world in which we have specialized providers for managed review who have professional standards of project management and quality control, and who leverage modern technology, including machine learning and artificial intelligence, to mitigate the burden.
Chan: Technology has shaped this particular industry and will continue to shape the way managed review will be done in the future.
What do you say to people who believe that computers and artificial intelligence will make document review redundant?
Gabriel: I don’t think that all the lawyers are going to lose their jobs quite yet. Modern technology is a godsend in the area of managed review. I have a case, which is not even one of the largest cases that we handle, with well over 17 million documents in the review population right now. So the technological efficiencies that we’re gaining as an industry have not, so far, outpaced the explosive growth of data volumes.
The technology depends on intelligent, smart, engaged reviewers to guide it. Predictive coding or technology-assisted review requires what we call supervised learning. Reviewers guide the application of the technology and need to understand what the documents actually say, what difference they make.
We are using the technology to leverage the work that our human reviewers and subject matter experts are doing. I don’t think that document review, as such, is going to be made redundant through artificial intelligence or machine learning, but technology is certainly going to help reduce the amount of work that we need to do and will provide us with greater consistency.
Why do you think the market is moving toward all-in providers for managed review and technology providers, or technology period?
Chan: Historically, many parties are involved in document review: attorneys, either outside counsel or inside counsel; maybe a separate contracting firm that does the first-level review; and an e-discovery provider responsible for the technology portion. A single provider streamlines that process, makes it a better overall experience, and has a tremendous amount of efficiency.
It’s like a home renovation. Right now, I’m redoing my kitchen. I could certainly go out and hire my own plumbers and electricians and do that coordination with all of them to see that everything gets in place. But if I have a general contractor, he has his own set of plumbers and electricians on hand. He does all of the coordination, having everything at the right place at the right time. All-in providers are the same.
What common challenges and problems do you see in managed review?
Chan: Cost, obviously, is one of the major challenges. With regards to the nuances of a document review, everything is international. You come across different languages, different time zones. When a review needs to happen, it might not necessarily be where you are. It could be across the globe.
The people aspect is probably the most challenging – ensuring that you have the right resources in place. A project review manager is really the key to the success of a review, a person with the right experience and the technological know-how who will put the proper QCs into place. That really falls on one person’s shoulders in the beginning.
Gabriel: Another common challenge is collaboration with the law firm. For us to be most efficient, we need to understand exactly what counsel is looking for, have the full insight into what counsel is trying to achieve. We work with them on designing the review instructions, on leveraging the technology. In some cases we work on negotiating the use of technology with the other side. That is where you have the greatest complexity but also the greatest opportunity.
Where do you see the future of managed review going?
Gabriel: The key is to understand what we’re trying to achieve. There are three goals in document review in the context of e-discovery. The first is that we need to decide for each document whether it needs to be produced to the other side, whether it needs to be withheld as privileged, or whether it’s simply nonresponsive. That’s what we would call the disposition of the document. I think that in the future, technology will play the lead when it comes to the disposition of the documents, because what we value here is consistency and speed.
The second goal in e-discovery is the protection of information. Our clients depend on protecting certain information from disclosure to the other side. The obvious example is privileged information, particularly legal advice, either sought or rendered in the context of a client's relationship with an attorney, but there are other categories of information that we also need to protect: protected health information, personally identifiable information under privacy laws, confidential information, trade secrets, source codes. This is certainly going to remain an area where we need human input and human quality control.
Finally, the third goal is what we call the construction of knowledge. That means understanding what the documents actually say. From millions and millions of documents that contain a tremendous amount of information, how do we get to knowledge that counsel can leverage in a case? Who did what when? What happened? Why did it happen? Those are the questions that ultimately need to be answered in the context of an investigation or litigation.
In the future, we will see a focus on the construction of knowledge, which increases the value of the work that we’re doing as a managed review provider.
We’re not just taking care of the disposition of documents. We’re also mitigating risk by protecting information and helping the client and counsel understand what the documents actually say, the good and the bad. The future of managed review is an increased role for technology and further refinement of the project management aspect, all with a focus on understanding the case.
What sets your managed review approach apart?
Gabriel: We are building the process of the future of managed review, focusing on how we can most efficiently leverage technology and specialists to arrive at a disposition of the documents and to protect information. We have project management that understands the pitfalls and subtleties. We add to these with the delivery of the technology – we have the ability to manage the data hosting and processing. We also help with the production in addition to the review, so we combine efficiency with a forward-looking approach.
Chan: Furthermore, we take advantage of what we have to offer at KPMG as a whole. It’s a big firm with many different practices, so we have professionals who have experience in the sectors where our clients do business. It could be in the life sciences. It could be financial services. We can lean on those professionals and say, “We’re working with a client in the automotive sector. What insights are you able to provide?” Their input backs into the review and gives us a leg up.
Gabriel: To Aileen’s last, increasingly important point, I would like to add our international footprint. We have practices around the globe in all of the major markets and colleagues with a forensic technology background. We can access subject matter experts around the world who support our increasingly international clients in dealing with legal challenges not just within the U.S. but everywhere.
For us, it is really about helping clients reduce the risks that they’re facing in e-discovery – the risks of missing important information, the risks of not being aware of what their documents say, the risks of court sanctions or of not achieving the results that they should achieve in a litigation.
Chan: We pursue what I would call smart review. What that means is we want to help our clients not only as a one-off, transactional review but to work with a client over time and say, “Based on the reviews of these documents on cases across our firm, we’re able to gather insights on profiles of individuals, profiles of your firm,” and then take that insight and fix certain areas where there might be gaps. You might have situations where an individual is saving too much data or an individual has information out there that shouldn’t be. Providing that back to a client, not just for managed review, is an overall enhancement to the client.
Published October 6, 2017.
