How to Prepare for 2022 Document Review Challenges

It is a well-known fact that the state of the labor market has shifted significantly, with a surge in hiring, and higher wages and benefits. Even temporary service industry jobs now command $20-$25 per hour plus benefits. This shift has impacted the document review services (DRS) industry. In 2022, document review rates will at best remain static but may be on the rise, particularly for reviewers in the U.S. As wages rise outside the legal industry, document reviewers are considering alternatives they might have rejected in the past because those jobs paid less. However, the salary gap has narrowed, and in some instances, closed. DRS attorneys may now make more money at their local restaurant, grocery store, or big box store than when they used their law degree to review documents.

In order to retain good talent, providers now need to pay reviewers more. However, margins are already razor-thin in this part of our industry, where downward price pressure has been a harsh reality for providers (and reviewers) for at least the past five years. As providers have no more margin to share and reviewers demand higher wages in our new socio-economic reality, prices for U.S.-based reviews will likely rise in 2022. However, there are ways to mitigate the impact on legal budgets.

One change to consider is moving to offshore review. While many large clients have already begun to leverage offshore review, particularly the financial industry, many law firms and corporations consider it a risk and are hesitant to use offshore resources. They mistakenly believe that reviewers who were trained outside the U.S. are not familiar enough with U.S. court rules and norms or worry about English literacy. Some attorneys previously experienced infrastructure or data access problems. However, most review providers solved these issues years ago.

While there are inherent differences between offshore and domestic reviews and sharp contrasts between providers and how they offer offshore reviews, they can be utilized strategically and defensibly while saving costs. Additionally, this is not an all-or-nothing proposition and, if well thought out and planned out with the service provider, could be a welcome mechanism for reducing costs. Some practical ways to leverage offshore review strategically include:

• Using it en masse as your default, with a well-developed workflow (many financial institutions choose this option)
• Using it strategically
  • For less sensitive case types
  • For cases that aren’t “bet the company” matters
• Using it for specific phases of review - e.g., for first-level review, but not privilege review or redactions
• Using it for review of opposing party productions or internal investigations where there is not a production component

Keep in mind that not all offshore review providers are the same. If you are considering offshore review, do some homework and vet your provider to understand how they approach it and ensure that you are comfortable with their tactics. Some items to investigate include:

• How secure are the facilities, or what are the security measures for a remote review?
• Will the offshore review be performed in the needed time zone? If you and your counsel are in U.S. Eastern Time, will the review team, or at least a subset of the reviewers or their leadership, be working during that time? Or will they be working during their local business hours?
• Will you have access to the offshore team for communication and feedback purposes?
• What security measures does the provider use to protect your data – and is that the same as for domestic reviews?
• What does management, training, and oversight look like for that offshore team?
• Can you view the resumes and background of the offshore leadership team?
• What approach would your service provider recommend to balance risk with cost concerns? Will your service provider pitch a one-size-fits-all approach or consult with your team and provide options based on the profile and needs of your matter?

Make sure you are comfortable with the offshore operations of your provider and understand how they are different from domestic reviews and the offerings of other providers. Take a strategic and deliberate approach – it may be right in some instances but not others. The effort may be well worth it; offshore rates will vary but can be substantially lower than U.S.- or EMEA-based review teams (sometimes 50% less expensive).

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