There has been much discussion around the prevention of inadvertent disclosure of privilege in litigation, but mistakes are still made. Take, for example, the case of Pilot v. Focused Retail Property I, LLC, No. 09-6879, 2011 WL 1238920 (N.D. Ill. Mar. 30, 2011).
In this case, counsel identified privileged documents; however, he overlooked the fact that his file also contained a duplicate set of these documents, with the privileged and unprivileged documents intermixed. Counsel’s assistant copied the set of privileged documents and produced it to the other party.
The magistrate judge held that the plaintiffs’ failure to adequately screen documents for production and to object to the use of privileged documents in a timely manner waived attorney-client privilege.
Technology, however, can simplify the entire process of identifying privilege, if used wisely. In this post, we will cover some of the tools you can use to identify privilege and avoid surprises.
Keyword searching is widely used for culling and filtering documents for determining privilege and responsiveness. The technology has greatly improved over the years, and advanced features like Boolean connectors, proximity locators, wild card, fuzzy logic, and stemming can deliver the accurate and desired results.
However, keyword searches should be used cautiously, as they may return a great number of false hits. For example, some search terms that are generally used to locate privileged documents are “legal,” “attorney,” “lawyer,” “privilege,” and “counsel.” These search hits may capture documents containing confidential disclaimers in the footer of an email.
Privileged information is most commonly found in email conversations between attorneys and their clients, or between other attorneys. Metadata filtering can be used to extract important information from an email by running searches on the sender and recipient fields to find attorney and law firm domains. Additionally, author, file name, and subject field can be filtered to identify privilege. This is one of the most trusted methods to reduce the number of false hits and zero in on privilege in the data set.
Many search tools are capable of providing the entire list of email addresses and domains associated with the law firms at the very onset of the review. This exercise can even help to uncover the names of attorneys and law firms of which the client was not aware of during the litigation. One such tool is LexInsight PrivCheck, which analyzes sender and recipient data to identify potentially privileged documents.
Conceptual searches work on mathematical algorithms to retrieve documents with similar language use or concepts. The method uses advanced analytics ahead of simple keyword matching techniques to analyze the information and determine the conceptual meaning of the search query. Further, the process finds documents that are conceptually similar, even if the matching document doesn’t contain any of the same terms placed in query text. It helps in identifying and withholding documents in the production set that are conceptually similar to privileged documents.
Clustering is an important tool that aids in automatic grouping of documents with similar conceptual content. In e-discovery, document clustering can provide a quick snapshot of the data and will help you visualize conceptual groups of documents. One advantage of these groupings is that it allows effective focusing of resources while performing privilege reviews. To locate privilege, you can look for cluster titles that may indicate privilege, such as the firm’s name, “counsel,” “confidential,” or “lawyer.”
Email threading has become relatively common in large discovery requests that contain massive data sets for review. The ability to view email threads plays an integral role in e-discovery because it connects related messages that might not otherwise appear together, thus reducing the number of documents to review. With email threading, reviewers are able to identify and review the latest email in a chain, which contains the entire conversation, rather than read each exchange individually. Email threading can be used as an effective quality control tool to identify missing or inconsistent privilege calls.
A challenge with inclusive emails, however, is that all senders and recipients from the entire thread may not be visible in one place. Individual participants may have been dropped from the thread somewhere along the line and thus are not present in the final inclusive email.
To overcome this concern, metadata-based email threading may play an important role. A separate party field can be populated that identifies every unique email participant throughout the entire thread. This field can be used for search and performing privilege audits.
Flawless Privilege Logs
When creating privilege logs, it is imperative to include only truly privileged documents. However, reviewers often err on the side of coding any communication between attorney and client as privileged. This increases the scope of determining privilege, and as a result, the privileged log is premised on a flawed understanding.
Before adding documents to a privilege log, you can QC your list by running a metadata search in the “To,” “From,” and “CC” fields to eliminate the portion of the email addresses that is related to third parties. This will help to identify documents that are incorrectly tagged as privileged and allow the reviewer to identify any domains that could present an issue to the privilege claim.
Lawyers need to understand that carelessness often leads to a waiver of privilege, which can cause severe detriment to a case. Having a sound framework of technology and best practices to identify and capture potentially privileged information is essential to preventing inadvertent disclosures.
If you have additional tips or best practices for identifying privilege, please share them with us in the comments.
Kaushal Jha is a senior manager at LexInnova, a litigation consulting firm, with more than six years of full-time managerial experience in litigation solutions and software asset management. He has supervised and managed document review on various matters across diverse industries including technology/communications, energy, financial services, insurance, and aviation. He has assisted clients with matters before investigating agencies including the DOJ, FINRA, SEC, FSA, SFO, and various state securities regulators.