Where is John Ashcroft When We Need Him?

It is clear from taking a cursory look at the review of the Justice Department's document dump on the fired U.S. Attorney's organized by Talking Points Memo's Muckraker and reading a surreal interview with Daniel J. Metcalfe, former director of the Office of Information and Privacy at the DoJ by Law.com, that the formerly proud DoJ has been destroyed by the incompetence of Gonzales and his cohorts. The political corruption of the DoJ now runs so deep, that it would take a Brandeis, Cardozo or Stone as Attorney General to have a prayer of returning the DoJ to a semblance of its role as a reasonably neutral arbiter of law that Americans could trust to mete out justice in a fair manner. Unfortunately, none of them are available, as they say in L.A.

The destruction of the DoJ aside, what is the wisdom and efficacy of crowdsourcing what attorney's call "document review" (typically after a lawsuit if filed) or "due diligence" (typically prior to a business deal being closed). While it is of course a huge step forward to have these DoJ documents available online, we should take a clear-eyed look at the document review process and what crowdsourcing can achieve.

Anyone who has ever reviewed documents in a litigation context, whether in "hard copy" form or online using various proprietary software programs, or performed due diligence on a business transaction could tell you that this is a process that cries out for lots of eyeballs. An old law partner and I, who practiced as a two man firm in the days before online document review was common, once made the mistake of suing Pepsi over exclusive franchise rights granted to an Asian affiliate (our client). Suffice it to say that Pepsi's counsel happily complied with our broad discovery request and delivered a truckload of documents for our review, many in Chinese. Lacking a team of attorneys and/or paralegals, we soon went blind and ended up settling for a pittance of what we should have received.

I have also witnessed massive online document reviews that extended over many months conducted by some of the country's best known attorney's with hundreds of lawyers participating. These type of reviews, where mirror copies are made of the hard drives and/or servers of the relevant corporate employees, most closely resemble the DoJ document dump. Typically you see a mix of emails and their attachments (Word, Powerpoint, Excel, or PDF files), 99.9% of which are completely worthless in a litigation context. This would seem to make crowdsourcing of government document review a great idea, since there are far more documents out there than any media organization, be it the NY Times or 20/20, could possibly review in a timely manner. There is one problem that bedevils all large endeavors, that of logistics. Who is in charge?

Isn't it the point that no one is in charge and that everyone contributes his/her two cents by digging up relevant nuggets that might otherwise be missed? Yes and no. All the eyeballs in the world can't make up for effective organization of the review. Even the most experienced attorneys can badly botch an online review - I would further enlighten you but I would lose my law license for disclosing privileged information on Fortune 500 companies. Suffice it to say that someone has to be firmly in charge of the review process for it to be effective.

Paradoxically, in order to effectively crowdsource document review, someone has to be in charge. It needn't be autocratic, but there needs to be an orderly queue of who reviews what and everyone must use the same standards of inspection for the review to be effective. Although I am not much of an expert on software design, an orderly queue could probably be established by using an off the shelf software program (e.g. take a number and we'll shoot you back your assigned document range). If TPM, AZ or any other media outlet want to crowdsource document review, we need to come up with a better plan of attack.