eDiscovery and the Inevitable Growth of Secure Remote Review

Today, attorneys commute to offices or other dedicated locations to review documents as part of the eDiscovery managed review process – much the same way that radiologists commuted to hospitals to read film-based X-ray images more than two decades ago. Accessibility to legal expertise is limited to those qualified resources living near and willing to commute to a specific location. And while the right number of attorneys may be available in dense urban areas to handle the increasing volume of electronically stored information (ESI), they may not always be the most appropriately qualified for the matter.

For example, a recent life sciences IP patent litigation matter handled by our company included tens of thousands of complex documents requiring a Ph.D. level of subject matter expertise for accurate understanding and issue coding. Given the required combination of legal, academic and document review-specific expertise, finding the right J.D./Ph.D.s within commuting distance to an existing – or even temporary – review center would have been an insurmountable hurdle, regardless of the client’s time and budget flexibility.

Instead, appropriately credentialed candidates were identified and recruited from five different states, integrated into the active review process via a highly secure virtual desktop solution and remotely overseen, in real time, by our review management team. All reviewers worked from the comfort of their homes, using the 70-issue code panel designed specifically for their subset of documents.

The expertise of these remote reviewers provided a level of quality and time savings to our client unavailable from the traditional facilities-based review model.

And challenges to the current review model will continue to build. The eDiscovery market is expected to grow by 23 percent annually over the next five years, from nearly $8 billion to $23 billion (MarketsandMarkets, November 2016). The sheer number of review attorneys required to handle this expansion, as well as the growing demand for niche practice expertise, will force significant changes to how we support reviews operationally within the eDiscovery process.

The good news is that we have a glimpse into the future of eDiscovery simply by looking at the successful technology-driven evolution of radiology to teleradiology – a highly regulated and data security-focused industry. The legal market is on a similarly inevitable, albeit tardy transition to getting the right documents in front of the right expert resources regardless of their location and specifically including work-at-home professionals.

A Tale of Two Industries

Teleradiology encompasses remote diagnosis, consultation and monitoring of digital patient images. It is a high-growth, multibillion-dollar and highly regulated industry, much like eDiscovery. The largest U.S. teleradiology practices have hundreds of board-certified physicians, credentialed at thousands of hospitals and reading millions of patient studies annually, all from home.

Given the similarities of the teleradiology and eDiscovery business models, I continue to be surprised at the virtual absence of a remote, home-based distributed legal review model. But its absence is understandable given the pushback from eDiscovery industry veterans as to why corporate clients and lawyers will never accept remote review as a standard practice. The concerns are strikingly similar to those voiced and published by similarly situated experts in radiology over two decades ago in an attempt to hold back the inevitable and required evolution to teleradiology:

  • lack of security.
  • risk of lower-quality resources.
  • inadequate oversight/collaboration.
  • increased commoditization of the industry.

With teleradiology now an embedded and accepted medical practice area, it is clear that remote review within the medical profession has addressed the issues now being posed within the legal field and eDiscovery.

Serious About Security

Medicine and radiology, like the law and eDiscovery, are highly regulated – especially when it comes to data privacy and personal information. The Health Insurance Portability and Accountability Act (HIPAA) Security Rule, established a national set of standards for ensuring the security of electronic protected health information (ePHI), including risk assessments, risk management specifications, as well as standards by which to ensure compliance by a remote workforce.

With data connections to tens of thousands of imaging devices within thousands of hospital clients and home-based physicians, teleradiology companies have the experience and best practices to ensure security in a distributed delivery model. Teleradiology companies have successfully navigated the transition to secure, remote, home-based interpretations by leveraging readily available and proven technology and processes, including data-in-motion and at-rest encryption to NIST standards, role-based access controls, frequent vulnerability and penetration testing and ongoing security and awareness training for all personnel.

The legal profession has a way to go.

According to the 2016 ABA TechReport, 26 percent of the largest firms (500+ attorneys), those most likely doing office-based reviews for clients, reported having experienced a security breach. Nearly 60 percent of all respondents said that their firms did not have a breach response plan in place.

“We are a self-governing profession, and there hasn’t been an environment to do cybersecurity,” says Daniel Garrie, founder of Law and Forensics, a tech firm that specializes in forensic investigations for law firms and others. “The economics of the practice of law doesn’t allow for investment. … Even in the biggest firms, there are only three or four people [working] on cybersecurity. There’s not much investment in people, resources, and they can’t pass the cost on to clients.” (March 2017 ABA Journal article, “Law firms must manage cybersecurity risks”)

Unlike law firms, however, eDiscovery providers that are specifically focused on security and data privacy as part of their service offering have had to invest in the people and technology to mitigate cybersecurity risks; it is the lifeblood of their brand and a core part of their value as an outsourced solution. Given that eDiscovery companies, like Advanced Discovery, already employ similar security measures as their teleradiology counterparts, there is no reason why the service associated with a remote review model would be any less secure – and certainly, no less so than the security being provided by many law firms currently doing reviews for their corporate clients in their office locations.

Quality Assurance for Quality Outcomes

Doctors, like lawyers, have a high set of standards and professional oversight to ensure the highest quality of patient and client care. There are many traditions within professional environments; change is often disruptive. During the initial transition to teleradiology, for example, physicians were alarmed that those choosing to work from home, and in a productivity-based compensation model, would not represent the “best” of their profession, (i.e., not have gone to the “right schools” or trained at the “right hospitals”). The implication was that the level of care would be of a lesser quality standard, reflecting poorly on the overall practice of radiology.

They were right that teleradiology attracted a different breed of physician; they were wrong that the level of care was in jeopardy.

Reported combined major and minor error rates over multiple years and millions of studies are significantly lower for teleradiology services than overall radiology industry benchmarks: between 0.3 percent and 0.35 percent vs. the most frequently cited studies, from Wilson Wong, MD, 1.09 percent, to D.J. Soffa, MD, 3.48 percent (ImagingBiz, September 2015).

Teleradiology quality success can be attributed to multiple factors:

  1. Radiologist recruitment and vetting practices
  2. Subspecialist-focused engagement
  3. Internal QA Best Practices
  4. Ongoing radiologist performance management
  5. Direct client feedback

A similar quality assurance template is already in place for facilities-based review; why would the quality level for lawyers working from home be any different? And most law firms already encourage their professional staff to work remotely. According to the 2016 ABA TechReport, 77 percent of lawyers already do legal work from home (not counting those whose primary office is a home office). A third of lawyers telecommute at least one day per week.

Teleradiology quality is also determined by its practitioners. Physicians choosing to work from home full- or part-time are not unable to find or keep a traditional practice or hospital-based position. Rather, they fall within several categories, all of which contribute to consistent and high levels of quality care:

  • Highly motivated, younger radiologists who embrace technology and who aspire to the work/life balance that teleradiology allows.
  • Subspecialist radiologists who prefer to read within their specialty.
  • Experienced physicians who choose to work part-time pre-retirement – and who can work from anywhere they like.

It is easy to see how remote review would be attractive to lawyers with similar demographics.

Quality Is Not Just The Absence of Errors; It Is Also The Improvement In Case Outcomes.

With teleradiology growth and consolidation, practices have acquired the scale and scope allowing investment in innovative technologies that bring benefit to the industry and to its clients. For example, large teleradiology companies hold multiple issued patents for innovation in telemedicine workflow and data normalization. One clear example of quality-enhancing innovation was reported in Imaging Technology News, describing a trauma protocol in which a patented teleradiology workflow automatically unbundles a patient’s full body scan into three body regions to be distributed to multiple teleradiologists to be read concurrently – saving time and ensuring subspecialty coverage when possible. Trauma studies are literally received, interpreted and reported back via automated notification to emergency room physicians in under 13 minutes – critical, when time can literally make the difference between life and death. Disruption in radiology has improved patient outcomes.

Like teleradiology, eDiscovery has disrupted the legal review market with patented and patent-pending innovation. Advanced Discovery’s most recent patent filing covers the use of artificial intelligence and machine learning for facial recognition and image identification with improved accuracy and cost of managed document review for clients. Creating disruptive tools to tame the ever-increasing types and amounts of data and integrating them into automated workflows that select the most appropriate reviewer, regardless of location, will continue to increase the likelihood of reviews staying on time, on budget and with better legal outcomes.

Out of Sight, Not Out of Mind

Teleradiology has also mastered remote oversight to ensure constant contact for clinical, technical and operational support within a distributed review model. For example, teleradiologists typically have instant access to virtual, real-time technical and operational support. As important, physicians can use secure text and video chat to consult with their peers to ask questions and collaborate on diagnoses – all for the benefit of their patients. Unlike in other medical specialties, there is no reason for a noninterventional radiologist to be on-site with a patient. The vast majority of radiologists never interact with a patient – only with patient images. That is why they are often referred to as “the doctor’s doctor,” because their interaction is typically with an ER physician or other medical professional.

Similarly, a review attorney is a “lawyer’s lawyer,” with little to no reason to be in proximity to a client. Remote review can easily mirror the use of secure communication tools to facilitate consultation and create a team environment, albeit a virtual one. Having access to a much wider range of lawyers, with a wider range of experience and specialized training than just those working within an office or review center, is a benefit to the reviewers, clients and case outcomes.

A Commoditized Solution

Finally, I have heard pushback similar to the accusations levied at teleradiology regarding the commoditization of the profession. The implication is that a productivity-based, remote workforce will drag down overall compensation – and the prestige of the specialty.

Teleradiology, just like remote review, isn’t the right career choice for everyone. However, the growth of remote review does not have to come at the expense of other legal job opportunities. The legal market has much larger structural issues that cannot be attributed to any potential disruption caused by the expansion of remote review. Rather, like teleradiology, remote review for eDiscovery should help to expand the recruiting market and provide alternative career paths – as well as alternative models with which to address the growth in size and complexity of litigation.

Like the law, radiology has for years been plagued by an overabundance of highly trained professionals with limited opportunity for employment and lots of student debt. It was also surprising, therefore, that many of the senior and respected “thought leaders” continued to fight against the inevitable transition to a remote radiology workforce – and an alternative means of employment and job satisfaction.

Some, however, were truly thought leaders and in 2003 wrote that “the evolutionary forces underway within radiology are occurring at a faster pace than ever before…. When everything is said and done, the transition from film-based to filmless imaging is a foregone conclusion…. Radiologists must also become active participants in the evolutionary process already underway. If we elect to ignore these inevitable changes in technology and its applications, we risk being marginalized by our peers and the community we serve.” (Journal of Digital Imaging, December 2003)

And over 15 years later, the American College of Radiology predicted a 16 percent job growth for radiologists in 2016. What changed? According to Deborah Abrams Kaplan in a recent article, “Teleradiology is one reason that radiology shot up…. Traditional radiologists are moving to full-time work in teleradiology because of quality of life issues and increasing compensation in the field. For the first time, large teleradiology companies are reaching out to recruiters to provide the talent they need.” (Diagnostic Imaging, August 2016)

The evolutionary forces underway within eDiscovery are also occurring at a faster pace than ever before. Let’s not ignore these inevitable changes, or the successful model of teleradiology. They may be just what the doctor ordered to benefit our clients and our profession.

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