Ethical Considerations While Executing an Electronic Discovery Document Review

By  Mark G. Griffin

Failing to understand how to choose a document review method, may run afoul of an attorney’s ethical obligations. Under ABA Model Rule 1.1, attorneys owe a duty to provide competent representation of their clients. Embedded within an attorney’s duty of competence is the duty to stay “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” See ABA Model Rule 1.1, cmt. 8. In California, Rule 3-110 of the California Rules of Professional Conduct governs an attorney’s duty to act competently. CPRC Rule 3-110(a) furthers the rules, stating that “[a] member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” Rule 3-110(b) defines competence to apply to “1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.” Under both ABA and CRPC rules, emerging electronic technology-assisted-review and document review platforms require attorneys to apply the proper document review methods or risk violating their ethical duties.

Given their ethical duties under the ABA and CRPC, attorneys should be aware of the three general civil litigation document review approaches linear review; non-linear review; and technology-assisted review.

The most familiar approach during a civil litigation document review is a linear review. A linear review consists of reviewing documents by a simple grouping, such as by custodian, date range and/or keywords. Reviewers precede to review each document until their set of documents is complete. An attorney must determine the goal and scope of the review to determine if a linear review is appropriate for the matter. For example, if an attorney’s goal is to ensure a document was not sent by reviewing a custodian’s entire mailbox, a linear review would likely be appropriate. However, given the thoroughness of a linear review, linear reviews may often be expensive and time-consuming, and therefore it is appropriate for an attorney to assess the goals of the review before deciding on this approach. Reviewers likely will be billing by the hour, thus reviewing more documents will lead to more hours billed. Clients are becoming ever so more cognizant of the cost on performing document reviews, so attorneys must determine whether it is necessary to perform a linear review to avoid inflated bills and unsatisfied clients.

A non-linear document review consists of organizing the documents by concept searching, clustering or near de-deduplication and reviewing just these organized documents. Most document review platforms enable non-linear reviews to utilize concept searching and near de-deduplication, significantly reducing the number of documents to be reviewed. Most useful for reviewing large data-volumes, non-linear reviews are best used where the entire volume does not need to be reviewed. An attorney utilizing non-linear review tactics may decrease the cost and time of a review by performing a more efficient review, enabling reviewers to spend less time performing a review. Failing to utilize a non-linear review discovery plan significantly increases the cost of a review, which may run afoul of an attorney’s duty of competence by failing to understand the “risks associated with relevant technology” or be found to “recklessly” perform a legal service.

The third approach, and arguably the most talked about but least utilized, is a technology-assisted review (TAR). TAR – which is otherwise known as predictive coding – uses machine learning to predict documents most likely to be responsive, through utilizing a human-reviewed seed set. Under a TAR approach, reviewers review and initial code a seed set of documents. The seed set is loaded into a review platform, such as Relativity, where it is analyzed and trends learned from the initial case team’s coding on the seed set is then extrapolated and applied to the remaining documents. Utilizing computer algorithms, platforms prioritize documents that should be reviewed based off of the seed set.

A more advanced version of TAR is continuous active learning. When utilizing continuous active learning TAR, a seed set is unnecessary, as the document review platform analyzes the case team’s coding patterns and trends in real-time. As reviewers code documents, the review platform analyzes those documents and extrapolates patterns onto the remaining documents to prioritize these documents for review.

While TAR is an exciting application to utilize during civil litigation reviews, TAR is only applicable to certain types of matters. Matters with a large volume of documents and known issues at the onset of the matter are ideal, as these matters prioritize a review of key documents that can significantly increase efficiency in fact investigations. If done correctly, either TAR approach may yield more accurate and complete results than human reviewers, saving time and decreasing the cost of one of the most expensive parts of a civil litigation matter, discovery review.

In the ever-evolving world of electronic discovery and document review, a failure to keep abreast of the emerging technologies that allow an attorney to perform document reviews efficiently may violate ABA and CRCP. To avoid violating an attorney’s duties, attorneys must maintain a baseline level of competence of litigation technology and when specific approaches should be deployed to utilize. If an attorney is not competent enough in leading a civil litigation review, an attorney may ethically partner with outside vendors to perform the review. Under ABA Model Rule 5.3(b), an attorney partnering with a vendor shall have “direct supervisory authority” over the “non-attorney” and should ensure the vendor’s conduct is “compatible with the professional conduct” of an attorney. Under CRCP Rule 3-110(c), attorneys who do “not have sufficient learning and skill” may partner with vendors to perform a competent review under “acquiring sufficient learning and skill.” Under each rule, an attorney must actively understand and participate in the vendor’s work.

Regardless of the civil litigation review approach an attorney chooses to utilize, it is clear that attorneys owe a duty of ethical competence in performing a review.

About the Author

Mark G. Griffin is a Staff Attorney at Munger, Tolles & Olson LLP in its San Francisco office. The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients or any of its respective affiliates. This article is for general information purposes and is not intended to be, and should not be taken, as legal advice.

Mr. Griffin is a member of the Law Practice Management and Technology Section of the California Lawyers Association.