Blog

Author: Remu Ogaki

There are experts in the field of eDiscovery who will confidently tell you “eDiscovery reviewers are commodities.”

They mean “commodity” in the economic sense. That is, the attorneys who review the documentary evidence in Discovery are essentially indistinguishable products like corn, wheat, or soybeans. Attorneys who are essentially a standardized product whose specifications have rendered identical in form and function, much like corn from field A in Arkansas purchased on a commodities market would be indistinguishable from that harvested in field B in Nebraska.

Under this operational theory, it literally doesn’t matter who the attorneys reviewing the documents are, what their experience has been, or what skills they may or may not have. All that matters is price and volume—getting a standardized product that meets discovery obligations for the lowest possible price point.

There are good reasons to cast doubt on this viewpoint.

This is not to say that price doesn’t matter, that at times “meeting the minimum discovery obligation at the lowest possible price point” cannot sometimes be what is in the best interest of the client.

The problem lies in the assumption. The assumption that reviewers are commodities in all types of cases, regardless of the factual background or the amount in dispute. That reviewers are always indistinguishable based upon their experience, performance, and abilities.

The issue is best thought of in terms of risk management. What percent risk is the client willing to accept that some important piece of evidence might be overlooked and unavailable to them at trial, or during negotiation for settlement?

If the amount in dispute is $50,000, a 5% risk of an eDiscovery Team failing to catch a key document that changes the outcome of a trial or arbitration would only be worth $2500. But if the amount in dispute is $5,000,000, the same 5% risk carries an expected value of $250,000. A 20% difference would be worth $1M.

The issue of varying quality of eDiscovery review teams are particularly acute in foreign language Discovery. This is because review teams’ quality can vary greatly, not just on all the ways English language attorney teams engaged in eDiscovery can vary, but also based on linguistic skill and cultural knowledge. These can make a practical difference in litigation.

Several years ago, there was an internal review based on the FCPA (Federal Corrupt Practices Act), essentially a potential bribery case conducted by a major Japanese company with which I had been involved. The Team I was managing was highly experienced, filled with native level speakers or those who had spent years living in Japan, who had a high degree of cultural knowledge about Japan.

This cultural proficiency turned out to be absolutely crucial for this investigation.

The company was focused on inappropriate gifts given to government officials, although no specific allegations of misconduct had been identified. Thus, our Team was engaged in a broad review of interactions with government officials. It was permissible for employees to invite officials to dinner meetings, so long as dollar limits on maximum value permissible on dinners was honored.

The investigation took an unexpected turn based on one document. A manager instructed in an email that a subordinate treat a government official to “konbu.” Konbu is a common type of edible seaweed in Japan. A person who is not well versed in Japanese culture, or a person who was relying on a machine translation of the document might dismiss this email communication as unimportant—perhaps asking that the official be taken to a vegetarian seaweed restaurant, for example.

Our team flagged this email as suspicious. Because “konbu” can potentially be used as slang for a part of a woman’s anatomy. This triggered further investigations of that business unit, which revealed falsified receipts that attempted to disguise government officials being taken to sex workers as if they were dinner receipts—actions that were obviously problematic under the FCPA.

The lesson here is that identifying important evidence is a skill that involves many aspects. Legal analysis skills, electronic search skills to identify likely key areas for careful investigation, and the ability to harness technology and AI to more efficiently reduce the workload.

However, having a skilled and experienced team of attorneys, who have the right linguistic and cultural backgrounds is not something that can be taken lightly. It is difficult to know beforehand how difficult it is to identify the types of evidence that an investigation would uncover.

Some questions to consider—what level of risk are you and your client willing to accept, and what kind of qualifications do you want for your investigative team?

About the Author

Remu Ogaki,
Counsel; Foreign Language Review Services

Remu has well over a decade of experience managing large teams of foreign language attorneys, paralegals and translators in the US and Japan. Follow him on LinkedIn here.