The Effect of COVID-19 On Disputes And Investigations.

Updated: May 24, 2020

“The law never sleeps,” goes the old saying, and amid the profound disruption imposed by the COVID-19 pandemic, investigations and litigation continue. But how should law firms and law departments think about the impact of COVID-19 on such matters, particularly document reviews? For example, how can it be prudent to transition to work-from-home (WFH) reviews when it is impossible to replicate every single security measure implemented in onsite reviews? We recently co-hosted a webinar, “The Effect of COVID-19 on Disputes and Investigations, to address the issues imposed on D&I by the current crisis. If you missed the webinar, you can watch it here.

Until recently, security and productivity concerns have prevented many law organizations from conducting reviews remotely. There can be a perception that remote reviews lack data security or are less productive than onsite operations. Now, with the pandemic leaving no choice but to switch to a WFH model, we find ourselves re-examining the idea.

A key point to bear in mind is that, as with any human endeavor, some degree of risk is always present. There’s always a cost-benefit analysis involved and always a point of diminishing marginal returns. When switching to remote reviews, the idea that you are switching from “safe” and “efficient” onsite review operations to risky and inefficient WFH reviews is an illusion–one must compare the risks of each and focus on the marginal risks in switching operations.

Much of the hesitation around switching to WFH arrangements centers on IT security, the possibility of nefarious actors, and the impact on productivity. Yet, comparing onsite operations to WFH set-ups reveals that the supposed advantages of the former aren’t what they seem. It turns out that WFH operations provide significant benefits, including security and productivity.

Consider IT. Most modern review projects, whether onsite or remote, use the same cloud-based, browser-accessed review platforms. Practically speaking, the reviewer’s physical location has no impact on IT security. Indeed, setups requiring direct access to an organization’s closed network (i.e., VPN) may present higher risks, because a successful intrusion via the document review operations could threaten the rest of your network.

Remediation may require taking the entire system offline, disrupting all activities–a much more significant IT risk than associated with the remote cloud/browser approach.

As for nefarious actors, keep in mind that the vetting of remote reviewers can–and often does–exceed that of onsite reviewers. The same deterrents (being fired, criminal liability and even the possibility of jail time) are in effect no matter where a reviewer resides.

Furthermore, the risk of any employee ‘going rogue’ and engaging in illegal behavior is tied to employee satisfaction, and as discussed below, remote reviewers are often significantly happier in their jobs compared to onsite reviewers.

As for fears of a ‘lazy remote reviewer', remote review systems provide the same tools to assess quality and review rate–and the data show that remote reviewers often work more productively than their onsite counterparts. One of our customers, a large investment bank, saw an immediate 21.5% increase in productivity upon switching from onsite review to a WFH scenario for reviewers.

There are several reasons why WFH reviewers outperform those onsite. Elimination of the daily commute offers more downtime with family and to relax. The home setting is a welcome change from delivery centers with stringent physical security controls. Reviewers feel relieved to be free from onsite policies banning cell phone use and strictly limiting the timing and duration of breaks. As far as cost-benefit analysis goes, employee happiness directly impacts recruiting costs and retention rates, and low employee morale can result in short-staffed reviews.

Taken together, these considerations around IT, nefarious actors, and reviewer productivity all point to remote reviews as often being more cost-effective and at an equivalent or lower risk – than onsite operations. Rather than degrading performance, the changes that the COVID-19 pandemic is forcing on law organizations may actually improve their document review function.

There can be a perception that remote reviews lack data security or are less productive than onsite operations. Now, with the pandemic leaving no choice but to switch to a WFH model, we find ourselves re-examining the idea.

Bhanu Relhan

​​​Director, Disputes and Investigations at Elevate Services, Gurgaon, India

Bhanu is a Director of Litigation Services at Elevate. Based in Elevate's Gurgaon (India) center, he is responsible for designing bespoke end-to-end solutions for customers, starting from early case assessment through the lead up to trial. Bhanu has constantly driven improvements in managed review processes, pioneering an "active management" model that drives significant enhancements in accuracy and cost reduction. His experience working with both law firms and the in-house side of the market enables his provision of deep insights into efficient and effective delivery of the end-to-end managed review process. Bhanu brings over 11 years’ experience managing global delivery services for Fortune 100 companies and top law firms. Prior to joining Elevate in 2017, he spent more than a decade at Thomson Reuters where he managed large teams of 300-400 attorneys working on multiple document review projects. Bhanu holds a law degree from Symbiosis International University, is a certified eDiscovery specialist from the Association of Certified eDiscovery Specialists (ACEDS certified) and holds a green belt in Six Sigma.

#COV19 #investigations #eDiscovery

Register here for your monthly Asia legal updates