In ediscovery, there are many different ways to get the job done. More often than not, the challenge is less about finding a solution, and more about finding the right solution. But how do you know what you don’t know?
We spoke with Mike Harris, a veteran attorney and ediscovery consultant, to learn more about a rare breed of professional – part investigator, part data scientist – who specializes in identifying, implementing and managing the right tools and approaches for any given ediscovery job: the review architect.
Michael, thanks for talking with us today. First things first: when you use the term “review architect,” what do you mean?
It’s an important question, really, because in conversations with attorneys and paralegals, we’ve realized that many have heard the term “review architect,” or similar terms like eDiscovery manager, review project manager, or eDiscovery attorney, but they don’t always really understand what the role involves. When I say “review architect,” I’m describing someone who goes beyond basic project management – someone who truly specializes in strategic ediscovery review planning and management.
So what does a review architect do?
Simply stated, the review architect is responsible for putting together the road map and creating the plans that will be used to manage a defensible document review. They’re involved from the inception of the review project, all the way through to production, and even into whatever follow-up activities might take place after the project concludes. It’s their job to take you from where you are to where you need to be.
Well, some ediscovery companies are essentially functioning as order takers – but if you don’t know what to order, or what’s even on the menu, you won’t be able to take advantage of all the things we can do today. Modern technologies can support methods and approaches that reduce the likelihood of errors, save huge amounts of time and money, and even allow for automation of many basic processes. But you need to understand what can be done before you can apply it to your particular situation.
A review architect isn’t an order taker – in fact, they’re exactly the opposite. They listen and ask questions. They show you what’s possible and help you choose the approach that’s best suited to the requirements of the project and the case.
So the focus isn’t just on doing the work. It’s on doing the work in the best possible way. Is that right?
Yes. Fundamentally, the review architect’s focus is 100% on client satisfaction – helping you understand how to best achieve your goals. If there’s one thing our experience in hundreds of matters has shown us, it’s that there’s a huge difference between what you’re looking for and what you really need.
There’s a lot to unpack in that statement. Can you explain?
Well, here’s the thing: You don’t know what you don’t know. So for example, if you’re spinning up a new case, you might assume there wouldn’t be that much data to collect from custodians’ cell phones, and that what data there was would be fairly simple to acquire. But the fact is, mobile device data changes from one minute to the next – data forensics experts call it “volatile”. And these days, people transact so much business on their phones, via email and text and so on, that there might be much more relevant data than you’d expect. That’s the sort of thing a review architect will help you understand: what you don’t know, or perhaps haven’t thought about yet. And then they’ll help you make the decisions that will address your priorities most effectively.
So if I want to become a review architect, what do I need to know?
First of all, you need to understand the legal requirements. There are a number of federal and state rules that govern eDiscovery, and you need to know them, chapter and verse. Second, you need to know the relevant case law, and you have to stay abreast of changes in the law and new developments that might affect the way you handle a case.
At least as important, though, is having a good head for data. You have to be really comfortable working with multi-faceted data sets, and you need to understand the difference between structured and unstructured data, and what that implies for processing, hosting and review strategies.
That sounds pretty complicated. What else do I need?
In this industry, privacy is always a big issue. You need to stay abreast of those requirements and expectations – you have to be able to plan for and handle PII or PHI appropriately. As the review architect, it’s your responsibility to ensure appropriate access controls are in place and create specialized workflows that accommodate PII and PHI.
PII? PHI? What’s that?
PII is “personal identifying information”. A social security number, for example. PHI is “personal health information” like your medical records. And that actually leads to another interesting aspect of the review architect’s skillset. You need to investigate and understand your clients’ information governance practices. What documents exist? Where can they be found? Is there PII or PHI? Where is it and how is it protected? This ensures potentially relevant information gets collected, and that sensitive data is properly handled.
Okay, so assuming I know and understand all of that, what does my day-to-day work look like?
Well, at the start of any project, you’re going to have a ton of conversations – that’s how you’re going to learn everything about the data, the environment, the client’s data governance practices – everything we just talked about. Once you’ve got your arms around that, you’re going to focus on setting up an appropriate review plan. That means deciding whether to use a linear review, a cluster review, or technology assisted review, and why – because remember, you’re going to explain and justify those options and decisions to your client. Then you’ll need to develop appropriate workflows, making sure to take data types, timelines, resources, goals and long-term objectives into account. And finally, you’ll need to develop appropriate search terms and queries to make sure you’re finding the documents you need to look at.
So does everybody need a review architect? And if so, why?
I’m totally going to say yes – and for pretty straightforward reasons. First, document review shouldn’t be treated like an afterthought. Planning and strategy are your best friends. They can help ensure you don’t miss key information, and a review architect is your best bet when it comes to refining your strategy and planning for every contingency.
Second, using an experienced architect, especially up front, can help you save time and money. Accurately estimating true costs for collection, processing and review is always tricky, but the review architect will be able to offer the perspective you need to get pretty darn close. Plus, they’ll be able to help you handle new or emerging data types, protocols, collection methods, and so on – the kinds of things that could wind up causing real problems and costing a ton.
Let’s think about the past year. We’ve done everything on Zoom. In Teams. On our phones, via chat. We’ve been running our businesses from our dining rooms while our kids did online math class at the same table. Today’s litigation involves yesterday’s data – which means we need to collect, process and host tons of information from sources that, two years ago, weren’t nearly as important: Teams, Zoom, a whole universe of chat apps – the review architect can help you sort all that out.
More than that, they can help ensure you’re properly interviewing potential custodians, collecting all potentially relevant data, and evaluating the implications of data types as they’re being collected. They can help you make sure everything you’re doing is defensible. But probably the most important thing is, they can help you understand the opportunities and capabilities of the available technologies. Like we said before, you don’t know what you don’t know. Realizing what’s possible can help you save time and money, improve accuracy, and from a big picture perspective, develop an ediscovery practice that’s forward-thinking and scalable.
That’s a lot – but you haven’t mentioned sanctions at all. And we know that’s always a huge concern.
Of course. And it stands to reason that the experience and perspective a review architect brings to the table can help avoid potential fines, sanctions, or adverse inferences – outcomes we often see in the wake of an incomplete or incorrect production. But they can also help you identify potential adjacent risks, for example, when evidence turns up in a data set that’s not specifically relevant to case A, but will probably be relevant in case B, which is eminent.
So if an organization decides they need a review architect, where can they find one?
Quite often they have people in-house who can fill the role of the review architect: a staff attorney or someone in the lit support department. The thing is, if you do have a person or a team in the role, be sure that all the areas the review architect should touch will be addressed by those people: strategy, workflows, data types, defensibility. Everything we just discussed.
And the fact is, for a really complex review, some firms that have an in-house review architect will still outsource to a specialist simply because the extra objectivity can be a real benefit. In-house people can sometimes be too close to the problem, whereas an outsider can more readily see the forest amidst all the trees. And of course, for companies that don’t have an in-house architect, specialized support from a trusted company is a huge asset.
Wrap it up for us. What are the key takeaways?
First of all, I’d say the review architect really is a special kind of person. They have to have a data-centric point of view, because productions are so totally data driven. The accuracy and completeness of your production can truly make or break your case, and it’s so easy to make a mistake if you don’t really understand the data that’s involved. Coupled with that, the review architect needs an investigative mindset and a real passion for problem-solving so that they can figure out where to what types of documents to look for and where to find them, and then design an approach to effectively review those documents without missing anything important, but also without being overly broad. The best architects have a blend of experience in eDiscovery, data science, project management and the law, combined with a great sense of intuition and a focus on problem solving.
And then there’s the value the review architect can bring. They are key participants and central figures in running any successful document review project, and even organizations with in-house review management resources can benefit from the support of a review architect, especially at the outset of a case. The support of a review architect who’s focused on problem solving, identifying efficiencies, and providing great client support can ensure a cost effective, thorough review – and working hand-in-hand with them, you’ll learn so much along the way.
Michael Harris is a former staff attorney with Arnold and Porter, and a Senior Director at Trustpoint.One. He specializes in helping clients select and use technology-enabled solutions to effectively manage complex ediscovery projects.