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Monthly Archives :

January 2011

eDiscovery Trends: Welcome to LegalTech New York 2011!
 

Today is the start of LegalTech New York 2011 (LTNY) and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 240 exhibitors providing information on their products and services.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2011 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 74 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 – 11:45 AM:

Proactive Information Governance to Reduce the Pain of eDiscovery

Discusses practices to:

  • Increase defensibility, accountability and transparency
  • Improve efficiency and reduce the volume of growing, uncontrolled information
  • Decrease risk of non compliance and reduce eDiscovery costs
  • Maximize the return on your technology investments and improve staff productivity
  • Adopt best practices and automate eDiscovery capabilities

Panelists are: Galina Datskovsky, Ph.D. CRM, SVP Information Governance, Autonomy, Inc.; Brett Durand, Director, Discovery Services, Pfizer, Inc.; Anthony Dianna, Partner, Mayer Brown, Inc,; and Debra Logan, VP, Distinguished Analyst, Gartner, Inc.  Moderator: Reed Irvin, VP Information Governance, Autonomy, Inc.

The 5 Most Important Things you Need to Consider when Bringing e-Discovery In-house

You have made the decision to in-source certain aspects of the e-Discovery process, or you're considering the potential benefits, but the next step is a challenge. In this session, we will address the five most important things to consider as you take on the responsibilities and risks of e-Discovery internally. We will look through the lenses of both legal and IT, and discuss how best to support the technology and business processes. We also evaluate sourcing models to address the risks. This is an ideal panel for corporate legal departments to attend along with their IT department leaders.

Panelists are: Andrew Sherman, Associate General Counsel, Rabobank; Glen McFarlane, Executive Director Legal & Compliance, JPMorgan Chase & Co.; Anthony Mosquera, Esq., Legal Division, Discovery Operations, Pfizer, Inc.  Moderator: Jeff Seymour, Principal, Deloitte Financial Advisory Services LLP.

2:00 – 3:15 PM:

e-Discovery as a Repeatable Business Process

Given the significant potential expense of eDiscovery, organizations cannot allow service providers to operate carte blanche. In-house and outside counsel must understand the eDiscovery process in the context of legal compliance and the current matter, and they also must be answerable to the CFO. In short, eDiscovery must be comprehended operationally and financially and be subject to standards of accountability, efficiency, and effectiveness like any critical business process.

Panelists are: Vince Catanzaro, Senior Counsel, Global Discovery Manager, DuPont; Scott Carlson, Partner & Co-Chair eDiscovery, Seyfarth Shaw; Woods Abbott, Senior Manager – Legal Operations, Raytheon Company. Moderator: Kelli Brooks, National Partner-in-Charge, Evidence and Discovery Management, KPMG LLP.

3:45 – 5:00 PM:

The Emerging "Smart Discovery" Paradigm for Cost Management in e-Discovery – Case Studies and Case Law"

This panel discussion focuses on the cost problems typically associated with the eDiscovery process. Using case studies, and against the backdrop of relevant case law and recent legal research, the panelists will review some of the paradigmatic changes that are emerging in the conduct of eDiscovery. Fundamental to this new wave of approaches, collectively referred to as "Smart Discovery," is an iterative—rather than linear—approach to eDiscovery processes. Using iterative techniques, such as sampling, predictive coding technology, data stratification, prioritization of custodians and data sources, and targeted collections, counsel can make real-time adjustments as they learn more about the people, terminology, and issues related to the case. The Smart Discovery approach also compresses the process, seeking to identify responsive data as close to source as possible, and enabling early learning and utilization of the data. The potential for litigants is a smaller, more manageable corpus of collected data, improved relevancy, reduced review time, and ultimately, lower costs.

Panelists are: Jason R. Baron, Director of Litigation, National Archives and Records Administration; Brian A. Davis, Litigation Department Co-Chair, Choate, Hall & Stewart LLP; F. Eli Nelson, Senior Staff Attorney, Project Manager – Discovery and Litigation Technology, Cleary Gottlieb Steen & Hamilton LLP; Chris Paskach, National Partner-in-Charge, Forensic Technology Services, KPMG LLP. Moderator: Warwick Sharp, Vice President, Equivio.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

eDiscoveryDaily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/TrialSolutions.

So, what do you think?  Are you planning to attend LTNY this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

Vote for the Most Significant eDiscovery Case of 2010!
 

Since it’s awards season, we thought we would get into the act from an eDiscovery standpoint.  Sure, you have Oscars, Emmys and Grammys – but what about “EDDies”?  (I’ll bet you wondered what Eddie Munster could possibly have to do with eDiscovery, didn’t you?)

So, we’re conducting a ‘little experiment’ to see what the readers of eDiscoveryDaily think about case law developments in 2010.  This is our first annual “EDDies” award to select the case with the most significant impact on eDiscovery practices in 2010.  No cash or prizes being awarded, or even a statuette, but a chance to see what the readers think was the most important case of the year from an eDiscovery standpoint.

We have “nominated” five cases below, which we feel were the most significant in different issues of case law, including duty to preserve and sanctions, clawback agreements under Federal Rule of Evidence 502, not reasonably accessible arguments and discoverability of social media content.  We have a link to review more information about each case, and a link at the bottom of this post to cast your vote.

Very Important!  You can vote anonymously, so we’re not using this as a “hook” to get your information.  You can click on the link at the bottom, select your case and be done with it.  However, we would welcome your comments as to why you selected the case you did and you can – optionally – identify yourself as well.  eDiscoveryDaily will publish selected comments to reflect opinion of the voters as well as the vote results on February 7.  Click here to cast your vote now!

So, here are the cases:

Duty to Preserve/Sanctions

  • The Pension Committee of the Montreal Pension Plan v. Banc of America Securities, LLC, 29010 U.S. Dist. Lexis 4546 (S.D.N.Y. Jan. 15, 2010) (as amended May 28, 2010) – “Pension Committee”: The case that defined negligence, gross negligence, and willfulness in the electronic discovery context and demonstrated the consequences (via sanctions) resulting from those activities.  Judge Shira Scheindlin titled her 85-page opinion “Zubulake Revisited: Six Years Later”.  For more on this case, click here.
  • Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 WL 3530097 (D. Md. 2010) – “Victor Stanley II”: The case of “the gang that couldn’t spoliate straight” where one of the defendants faced imprisonment for up to 2 years (subsequently set aside on appeal) and the opinion included a 12 page chart delineating the preservation and spoliation standards in each judicial circuit.  For more on this case, click here and here.

Clawback Agreements

  • Rajala v. McGuire Woods LLP, 2010 WL 2949582 (D. Kan. July 22, 2010) – “Rajala”: The case that addressed the applicability of Federal Rule of Evidence 502(d) and (e) for “clawback” provisions for inadvertently produced privileged documents.  For more on this case, click here.

Not Reasonably Accessible

  • Major Tours, Inc. v. Colorel, 2010 WL 2557250 (D.N.J. June 22, 2010) – “Major Tours”: The case that established a precedent that a party may obtain a Protective Order relieving it of the duty to access backup tapes, even when that party’s failure to issue a litigation hold caused the data not to be available via any other means.  For more on this case, click here.

Social Media Discovery

  • Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010) – “Crispin”: The case that used a 24 year old law (The Stored Communications Act of 1986) to address whether ‘private’ data on social networks is discoverable.  For more on this case, click here.

If you feel that some other case was the most significant case of 2010, you can select that case instead.  Other notable cases include:

  • Rimkus v. Cammarata, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010): Where District Court Judge Lee Rosenthal examined spoliation laws of each of the 13 Federal Circuit Courts of Appeal.
  • Orbit One Communications Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010): Magistrate Judge James C. Francis concluded that sanctions for spoliation must be based on the loss of at least some information relevant to the dispute (differing with “Pension Committee” in this manner).
  • DeGeer v. Gillis, 2010 U.S. Dist. Lexis 97457(N.D. Ill. Sept. 17, 2010): Demonstration of inadvertent disclosure made FRE 502(d) effective, negating waiver of privilege.
  • Takeda Pharmaceutical Co., Ltd. v. Teva Pharmaceuticals USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010): Defendants’ motion to compel the production of ESI for a period of 18 years was granted, with imposed cost-shifting.
  • E.E.O.C. v. Simply Storage Management, LLC, 2010 U.S. Dist. Lexis 52766 (S.D. Ind. May 11, 2010): EEOC is ordered to produce certain social networking communications.
  • McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010): Motion to Compel discovery of social network account log-in names and passwords was granted.

Click here to cast your vote now!  Results will be published in eDiscoveryDaily on February 7.

The success of this ‘little experiment’ will determine whether next year there is a second annual “EDDies” award.  😉

And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: When is Attorney-Client Communication NOT Privileged?

One answer: When it’s from your work email account, and your employer has a written policy that company email is not private and subject to audit.  Oh, and you’re suing your employer.

In Holmes v. Petrovich Dev. Co., LLC, 2011 WL 117230 (Cal. Ct. App. Jan. 13, 2011), a California court of appeals upheld a trial court ruling that emails from a plaintiff to her attorney via her company’s computer “did not constitute ‘confidential communication between client and lawyer’ within the meaning of Evidence Code section 952” and thus were not privileged.

The plaintiff, Gina Holmes worked as an executive assistant at Petrovich Development of Sacramento, California.  When hired, she read and signed the company’s policies regarding use of computers, which informed employees that they had no right of privacy to any personal information created or maintained on company computers, and that such information was subject to monitoring.

Holmes claimed Petrovich Development became hostile when it found out she was pregnant shortly after being hired in 2004 and used her company’s computer to communicate with an attorney, eventually quitting her job and suing her employer.  During the case, emails between her and her attorney were introduced at trial “to show Holmes did not suffer severe emotional distress, was only frustrated and annoyed, and filed the action at the urging of her attorney”.  Despite plaintiff’s protests that the emails were privileged, they were not excluded from evidence at trial.  Rather, the trial court ruled that the emails “were not protected … because they were not private.”  Because the plaintiff did not prevail on any of her claims, she appealed, claiming the court erred in failing to exclude the emails.

In a 3-0 decision by the Sacramento Third Appellate District, they affirmed the findings of the trial court, stating that the plaintiff’s use of the company computer after being expressly advised that her messages were not private was “akin to consulting her attorney in one of defendants’ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard … would be privileged.”.  The court also noted that “communication under these circumstances is not a “‘confidential communication between client and lawyer’ “ within the meaning of section 952 because it is not transmitted “by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation….”.

So, what do you think?  Was justice served?  Please share any comments you might have or if you’d like to know more about a particular topic.

Managing an eDiscovery Contract Review Team: Identify a Project Manager
 

Yesterday, we talked about applying topic codes to the documents to identify helpful or harmful documents.  Today, we will talk about identifying a project manager for the review.

A good, experienced project manager is critical to the success of your review project.  In fact, the project manager is the most important part of the equation.  The project manager will be responsible for:

  • Creating a schedule and a budget
  • Determining the right staff size
  • Lining up all the resources that you’ll need like computer equipment, software, and supplies
  • Preparing training materials.
  • Coordinating training of the review team
  • Serving as a liaison with the service providers who are processing the data, loading data into the review tool, and making the review tool available to the review team
  • Monitoring status of the project and reporting to the litigation team
  • Identifying potential problems with schedule and budget and developing resolutions
  • Ensuring that questions are resolved quickly and that lines of communication between the review team and decision makers are open
  • Supervising workflow and quality control work

Choose someone who has project management experience and is experienced in litigation, technology, electronic discovery, working with vendors, and working with attorneys.  Identify the project manager early on and get him or her involved in the project planning steps. 

What do you look for in a project manager?  Please share any comments you have and let us know if you’d like to know more about an eDiscovery topic.

Managing an eDiscovery Contract Review Team: Applying Topic Codes in the Document Review
 

So far we’ve covered drafting criteria for responsiveness and for privilege.  You may, however, be asking the review team to do more than that in the document review.  You might, for example, ask them to apply topic codes to the documents or to identify helpful or harmful documents.  At this point in the case, you will be better off keeping this very simple.  There are several reasons for this:

  • Chances are that you’re on a tight schedule.  An in depth analysis of the collection at this point may cause you to miss production deadlines.
  • If you ask people to focus on too many things in the review, you increase the likelihood of errors and inconsistencies, especially if the team is inexperienced with the case, the client and the documents.
  • You’re still in the early stages of the case.  As it evolves you’ll identify new facts, issues and witnesses that will be important.  This will not be your only effort to match documents with issues, facts and witnesses.

It may be reasonable, however, to ask the team to do some very basic categorization of the documents around topics.  Let me give you an example.  Let’s say you are handling a pharmaceutical case involving a drug product that is alleged to have significant adverse reactions.  You know that you’ll be interested in documents that discuss testing of the product, marketing, manufacturing, and so on.  You could ask the team to apply those general types of topics to the documents.  You could also identify a few examples of text that will be helpful and text that will be harmful, and create corresponding topic codes (using our pharmaceutical case illustration, you might have a topic code for “Death of a patient”).   A very simple set of topic codes shouldn’t slow down the review, and this effort will provide some search hooks into the collection once the review is complete.

Once you’ve developed a simple, workable topic list, write clear, objective definitions for each topic, and find documents in the collection that serve as examples of each.  Include those definitions and examples in the criteria.

Do you have topic codes applied to a collection in an initial review?  How do you approach it and how well does it work?  Please share any comments you have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Searching: For Defensible Searching, Be a "STARR"
 

Defensible searching has become a priority in eDiscovery as parties in several cases have experienced significant consequences (including sanctions) for not implementing a defensible search strategy in responding to discovery requests.

Probably the most famous case where search approach has been an issue was Victor Stanley, Inc. v. Creative Pipe , Inc., 250 F.R.D. 251 (D. Md. 2008), where Judge Paul Grimm noted that “only prudent way to test the reliability of the keyword search is to perform some appropriate sampling of the documents” and found that privilege on 165 inadvertently produced documents was waived, in part, because of the inadequacy of the search approach.

A defensible search strategy is part using an effective tool (with advanced search capabilities such as “fuzzy”, wildcard, synonym and proximity searching) and part using an effective approach to test and verify search results.

I have an acronym that I use to reflect the defensible search process.  I call it “STARR” – as in “STAR” with an extra “R” or Green Bay Packer football legend Bart Starr (sorry, Bears fans!).  For each search that you need to conduct, here’s how it goes:

  • Search: Construct the best search you can to maximize recall and precision for the desired result.  An effective tool gives you more options for constructing a more effective search, which should help in maximizing recall and precision.  For example, as noted on this blog a few days ago, a proximity search can, under the right circumstances, provide a more precise search result without sacrificing recall.
  • Test: Once you’ve conducted the search, it’s important to test two datasets to determine the effectiveness of the search:
    • Result Set: Test the result set by randomly selecting an appropriate sample percentage of the files and reviewing those to determine their responsiveness to the intent of the search.  The appropriate percentage of files to be reviewed depends on the size of the result set – the smaller the set, the higher percentage of it that should be reviewed.
    • Files Not Retrieved: While testing the result set is important, it is also important to randomly select an appropriate sample percentage of the files that were not retrieved in the search and review those as well to see if any responsive hits are identified as missed by the search.
  • Analyze: Analyze the results of the random sample testing of both the result set and also the files not retrieved to determine how effective the search was in retrieving mostly responsive files and whether any responsive files were identified as missed by the search performed.
  • Revise: If the search retrieved a low percentage of responsive files and retrieved a high percentage of non-responsive files, then precision of the search may need to be improved.  If the files not retrieved contained any responsive files, then recall of the search may need to be improved.  Evaluate the results and see what, if any, revisions can be made to the search to improve precision and/or recall.
  • Repeat: Once you’ve identified revisions you can make to your search, repeat the process.  Search, Test, Analyze and (if necessary) Revise the search again until the precision and recall of the search is maximized to the extent possible.

While you can’t guarantee that you will retrieve all of the responsive files or eliminate all of the non-responsive ones, a defensible approach to get as close as you can to that goal will minimize the number of files for review, potentially saving considerable costs and making you a “STARR” in the courtroom when defending your search approach.

So, what do you think?  Are you a “STARR” when it comes to defensible searching?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Metadata Mining Ethics
 

Years ago, I put together a CLE course about metadata awareness and how hidden data (such as tracked changes and comments) can cause embarrassment or even inadvertent disclosures in eDiscovery.  The production of metadata with ESI continues to be a big issue in eDiscovery and organizations need to consider how to handle that metadata (especially if it’s hidden), to avoid issues.

For those who don’t know, metadata can be simply defined as “data about data”, which is to say it’s the data that describes each file and includes information such as when it was created, when it was last modified and who last modified it.  Metadata can often be used in identifying responsive files based on time frame (of creation or last editing) or other criteria.

Many types of files can contain other hidden metadata, such as a record the changes made to a file, who made those changes, and any comments that those parties may have also added (for example, Microsoft Word has Tracked Changes and Comments that aid in collaboration to obtain feedback from one or multiple parties regarding the content of the document).  Embedded objects can also be hidden, for example, depending on how you embed an Excel table into a Word document; the entire Excel file may be accessible within the document, even though only a small part of it is displayed.

Last fall, the American Bar Association published an article with a look at metadata ethics opinions, which was also recently referenced in this article.  The opinions issued to date have focused on three topics with regard to metadata production:

  • The sender's responsibility when transmitting or producing electronic files;
  • The recipient's right to examine (or "mine") files for metadata; and
  • The recipient's duty to notify the sender if sensitive data is discovered.

Sender’s Responsibility

Jurisdictions agree that an attorney sending or producing ESI has a duty to exercise caution to avoid inadvertently disclosing confidential information, though the level of caution required may vary depending upon the jurisdiction and situation.  In SBA Ethics Opinion 07-03, the State Bar of Arizona's Ethics Committee indicated that level of caution may depend upon "the sensitivity of the information, the potential consequences of its inadvertent disclosure, whether further disclosure is restricted by statute, protective order, or confidentiality agreement, and any special instructions given by the client."

Ignorance of technology is no excuse.  The Colorado Bar Association Ethics Committee states that attorneys cannot limit their duty "by remaining ignorant of technology relating to metadata or failing to obtain competent computer support." (CBA Ethics Opinion 119).

Recipient’s Right to Examine

There is less jurisdictional agreement here.  Colorado, Washington D.C. and West Virginia allow metadata mining unless the recipient is aware that the data was sent unintentionally. On the other hand, New York and Maine prohibit metadata mining – the New York State Bar Association's Committee on Professional Ethics based its decision in part on the "strong public policy in favor of protecting attorney-client confidentiality." (NYSBA Opinion 749).  Minnesota and Pennsylvania have not set a bright-line rule, stating that the decision to allow or prohibit metadata mining should depend on the case.

Recipient’s Duty to Notify

Most jurisdictions rely on their local variation of ABA Model Rule of Professional Conduct 4.4(b), which indicates that an attorney who receives confidential data inadvertently sent is obligated to notify the sender.  Maryland is one exception to that position, stating that "the receiving attorney can, and probably should, communicate with his or her client concerning the pros and cons of whether to notify the sending attorney." (MSBA Ethics Docket 2007-09).

Bottom Line

You may not be able to control what a recipient can do with your inadvertently produced metadata, but you can take steps to avoid the inadvertent production in the first place.  Office 2007 and greater has a built in Document Inspector that eliminates the hidden metadata in Office files, while publishing files to PDF will remove some metadata (the amount of metadata removed depends on the settings).  You can also use a metadata “scrubber” application such as Workshare Protect or Metadata Assistant to remove the metadata – most of these will even integrate with email so that you have the option to “scrub” the file before sending.

So, what do you think?  Have you been “stung” by hidden metadata?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Privilege Waived for Produced Servers

If you were at the International Legal Technology Association (ILTA) trade show this past August, you may have noticed a huge unfinished building in the middle of the strip – the Fontainebleau Resort.  It sits idle after financing was pulled, forcing Fontainebleau Las Vegas LLC to file for Chapter 11 bankruptcy in June of 2009.  Naturally, lawsuits followed, between the Term Lenders and Fontainebleau Resort, LLC (FRLLC), the third party parent of Fontainebleau Las Vegas – In re Fontainebleau Las Vegas Contract Litig., (S.D. Fla. Jan 7, 2011)

A company that responded to a third party subpoena and court orders compelling production by handing over three servers to lenders without conducting any relevancy review and without reviewing two of the servers for privileged materials waived privilege for documents on the two servers that were not reviewed.

The parent company of a resort in bankruptcy proceedings was served by lenders to the resort with a subpoena for production of documents. The company did not object to the scope of the subpoena, and the court granted a motion of the lenders to compel production. Counsel for the company then halted work by an e-discovery vendor who had completed screening the company’s email server for responsive documents but had not started a privilege review because of concerns that the company could not pay for the services. Counsel for the company also sought to withdraw from the case, but the company was unable to find new counsel.

Rather than seeking a stay or challenging discovery rulings from the court, the company turned over data from a document server, an accounting server, and an email server. According to the court, the three servers were turned over to the lenders without any meaningful review for relevancy or responsiveness. Despite an agreement with the lenders on search terms for the email server, the company produced a 126 gigabyte disk with 700,000 emails from that server and then, without asking for leave of court, was late in producing a privilege log for data on the email server. The lenders sought direction from the court on waiver of privilege and their obligation if they found privileged materials in the data produced by the company. The company for the first time then raised objections to the burdensomeness of the original subpoena served over six months earlier given the company’s lack of resources or employees to conduct a document review.

The court held that the company “waived the attorney-client privilege and work product protection, and any other applicable privileges, for the materials it produced from two of three computer servers in what can fairly be described as a data dump as part of a significantly tardy response to a subpoena and to court-ordered production deadlines.” The court stated that in effect, the company “took the two servers, which it never reviewed for privilege or responsiveness, and said to the Term Lenders ‘here, you go figure it out.’”

However, because the company prepared a privilege log for the email server, the court added that privileges were not waived for materials from the email server. Also, the lenders were directed to alert the company to any “clearly privileged material they may find during their review of the production on the documents and accounting servers.” Although the court was not ruling on admissibility at trial of that privileged material, the lenders would be allowed to use it during pre-trial preparations, including depositions.

So, what do you think?  Was justice served?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Managing an eDiscovery Contract Review Team: Drafting Privileged Criteria

Yesterday, we covered drafting criteria for responsiveness.  You may, however, be asking the review team to do more than identify responsive documents.  You might, for example, also ask them to identify privileged documents, significant documents, documents that need to be redacted, documents that need to be reviewed by an expert, and so on.  In this issue, we’ll talk about reviewing for privilege.

First, let’s clarify what you’ll be asking the review team to do.  If you are using a team of contract reviewers, it is unlikely that you’ll be asking them to make privilege decisions.  You might, however, ask them to identify and flag potentially privileged documents.  Under this approach, attorneys on your team who can make privilege decisions would do a subsequent review of the potentially privileged documents.  That’s when privilege decisions will be made.

Of course, you’ll need to give the contract team criteria for potentially privileged materials.  Consider including these information points and instructions in the criteria:

  • The names and initials of individual attorneys, both outside counsel and corporate in-house attorneys.
  • The names and initials of legal assistants and other litigation team members of outside counsel and the corporate legal department (work done by these individuals under the direction of counsel may be privileged).
  • The names of law firms that have served as outside counsel.
  • Documents on law firm letterhead.
  • Documents stamped “Work Product”, “Attorney Client”, “Privileged” or other designations indicating confidentiality re litigation.
  • Legal documents such as pleadings or briefs in draft form.
  • Handwritten annotations on documents that may be authored by counsel or litigation team members under the direction of counsel.
  • Subject areas of privileged communication.

In addition, provide instructions for documents that will not be privileged.  In every collection, there will be certain types of documents that won’t be privileged unless they bear privileged annotations.  Examples are published literature, press releases, advertisements, corporate annual reports, brochures, user manuals…  in short, any documents that are public in nature.  These materials won’t be privileged unless they bear privileged annotations.  Likewise, most document collections will include internal documents that will fall into the same category.  Examples may be insurance policies, invoices, manufacturing reports, and so on.  Create a list of these documents and include them in the criteria instructions.

Have you drafted criteria for a privilege review of a large collection?  How did you approach it and how well did it work?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

Managing an eDiscovery Contract Review Team: Drafting Responsive Criteria – a Step-by-Step Guide
 

The criteria that you prepare for the review will be governed by the objectives that you established for the review.  At a minimum, you’ll draft criteria for responsive documents.  In addition, you may draft criteria for privileged documents, hot documents, and so on.  Let’s start with drafting responsive criteria.  For this step, you’ll need the request for production and the notes that you took when you sampled the document collection.

For each separate point on the request for production, do the following:

  • Expand on the definition.  Make it clearer and more detailed.  Make sure that the language you use is understandable to lay people.
  • List topic areas that are likely to appear in responsive documents.  Make sure these topic areas are objective in nature and that they minimize the need for judgment.  For example, don’t include criteria like “documents that demonstrate negligence in operations”.  Rather, break this down into real-life objective examples like “documents that discuss accidents”, “documents that discuss poor employee performance” and so on.  Use real examples from the documents – examples that you came across during your sampling of the collection.
  • List date ranges of responsive materials.
  • Based on your review of the documents, list as many examples as you can of document types that are responsive, and attach examples to the criteria. 
  • Based on your review of the documents, include as many examples as you can of responsive text.

Several members of the litigation team should review the draft criteria.  Once all suggestions for modifications and additions are agreed upon, put the criteria in “final” form – “final” meaning the document that you will use at the start of the review project.  As you go move forward, update the criteria with more examples and clearer definitions as you learn more about the collection.

In the next issue, we’ll cover criteria for other review objectives you might have established (for example, you might be screening for privilege or significance).

Have you drafted criteria for a document review of a large collection?  How did you approach it and how well did it work?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.