Canadian Lawyer

18 S e p t e m b e r 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m by Dera j. nevin tECh support Is document review legal work? Many factors play into the answer including reputation and economic risks to be borne due to failed reviews. a Toronto-based law firm specializing in document review was acquired by an account- ing firm; the acquir- ing company disclaims that document review is legal work. Similarly, many companies that are not law firms now offer "legal" document review as a service. So, is document review legal work? It depends. Sometimes the answer to the ques- tion seems obvious. Document review occurs for many reasons and in different contexts. It doesn't take a legal education to determine whether or not a document contains a specific word (i.e. "balloon") if the presence of the word alone is the measure of the review's completeness and efficacy; indeed, a computer can do this faster and more accurately than humans. But arguably, where a docu- ment needs to be vetted for a complex legal concept, such as privilege, a legal education seems mandatory. We could expend much time and energy detailing the gradations in between a review for "balloon" and a review for privilege and assessing wheth- er each proffered example is "legal work." But, I don't think that method of deter- mining whether document review is "legal work" gets us very far. Instead, I ask: Given the economics, purpose, and proposed process for the outsourced document review, what are the legal risks we might encounter, and what delivery mechanisms, contractual protections, indemnifications, and pro- cess strategies are available to minimize those risks to a level understood and approved by the client? This requires an analysis of the proposed delivery model for the document review and the objec- tives of the document review compared against the client's risk appetite given the full legal context in which the document review will take place. Pausing here: Implicit in my answer is an assumption that questions about how the document review will be per- formed, including by whom and how, require legal review. Arguably it's a mat- ter of protection for lawyers and their clients. In most jurisdictions, where a lawyer is conducting a litigation or regulatory investigation, he or she must supervise all those participating in the delivery of legal services. To my knowl- edge, the question has not been litigated in Canada in the context of document review, but in the U.S., there is case law and bar association advisory opinions confirming lawyers are responsible for the process and outcome of document review when it is subcontracted to third parties. Sometimes I wonder if asking wheth- er review is "legal work" is similar to asking if litigation requires a lawyer. Liti- gators understand their value increases given more complex facts and law, and the difficulty in the presentation of the evidence. But clearly, many people get by without a lawyer — for better or worse; see the legions of self-represented litigants in the courts. But I digress. Also, I amuse myself by analogizing outsourc- ing document review to outsourcing IT services. Few would consider doing so without having knowledgeable IT out- sourcing counsel review the arrange- ments, yet document reviews are rou- tinely outsourced without an e-discovery lawyer reviewing the arrangements. But I digress again. Corporate arrangement. Insurance arrangements may differ if the entity performing the document review is not a law firm. Indeed, some companies have insurance limits lower than law firms that perform this work, or dif- ferent exclusions (including around warranties). And, of course, privilege protections may not follow informa- tion communicated to a document review company in all circumstances. Pay attention to contracts, insurance arrangements, indemnities, liability exclusions, and the process protections for communications. Review of out- of-jurisdiction arrangements require particular attention as conflict of laws issues arise. Delivery model. Third-party docu- ment reviews can occur on-premise or off-premise (distributed): either the reviewers are at a single location or are working remotely (often from home). A fully distributed model raises questions about information and document secu- rity, maintaining confidentiality and privilege, and supervision generally. This is not to say that distributed models

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