Contract Attorneys

The Document Review Blame Game

"Who" makes a mistake may not be as important as "why."

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I was out for drinks with some fellow document review attorneys and heard a familiar tale. You see, a doc reviewer had missed a document that contained privileged information. Dun dun dun. That’s the prototypical document review worst case scenario. The doc had already been produced and plans for clawing back the material were made. That left only one thing left to do before the incident could be checked off as “handled” — find the reviewer that made the mistake and make a public example of them.

Work long enough in the document review industry and you’ll know what I mean. The theory seems to be that if you publicly reprimand (and usually remove from the project for good measure) the party responsible for a mistake, you’ll scare everyone else into perfection.

But here’s the rub — perfection is impossible. And just because the individual that made the error is gone (or “appropriately” frightened into submission) doesn’t mean your problem is handled. Of course there are instances where the root of the problem is simple carelessness on the part of the reviewer and firing them is the best course of action, but there are plenty of cases where the issue goes deeper than that. When those leading review projects get overly fixated on who caused the problem, then they can miss what caused the problem.

Maybe privilege was missed because the attorney involved goes by a nickname and the team was unaware of that fact. Maybe the issue was insufficient training on the “copy from previous” function in the review tool. Maybe the miss was made because the review team didn’t know there is a third-party with which your client is aligned with/has a joint defense agreement with and is therefore within the privileged relationship.

I could continue to propose reasons why a privileged document might be missed (because there are tons of potential reasons) but the point remains, when the focus is solely on getting rid of who made the mistake you can ignore the underlying issues that make the mistake repeatable. There is something about the visceral call for blood that satiates the relevant party (the client/partner/project manager) that causes the more difficult work of figuring out why the problem happened and what improvement can be made to your discovery protocols to get ignored.

While I’ve seen some of the better ediscovery vendors focus on the process, too often the singular notion of the case blinds those in charge to the bigger picture lessons that can be taken away from the situation. Just because discovery might be closing on the case where the mistake happened doesn’t mean that the intelligence that might be gained from the experience is useless. Presumably you will have future cases, maybe even for the same client, and understanding where the pitfalls lie creates value. Like G.I. Joe always said, knowing is half the battle.

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Alex Rich is a T14 grad and Biglaw refugee who has worked as a contract attorney for the last 7 years… and counting. If you have a story about the underbelly of the legal world known as contract work, email Alex at [email protected] and be sure to follow Alex on Twitter @AlexRichEsq

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