Among the most challenging, time-consuming and expensive aspects of a document review for production is ensuring that potentially privileged documents — certain communications between lawyer and client or attorney work product with content deemed confidential — aren’t swept into the production pile. Although legal avenues exist to claw back inadvertently produced documents subject to privilege, it may not be possible and in any case, since the documents cannot be “unseen” by the opposing party, the damage is usually done.
Why Privilege Reviews are a Challenge
Attorney-client privilege is intended to protect certain communications between attorney and client, thus enabling full disclosure and provision of legal advice protected from outside scrutiny. But the precise identification of such documents in large datasets is an ongoing challenge.
Although there are identifiers that can suggest that a communication might be privileged (a lawyer’s name on an email, for one), it is the substance of the communication and the other parties who may have been privy to it that tell the tale — and it can be a long story. Many privilege calls are difficult ones to make, even for the legal entities involved. Further, there may be instances when a party may prefer that information that could be deemed privileged actually see the light of day.
The complexity of both finding potentially privileged information in large datasets and making the final privilege call explains why today’s incumbent process is a mix of tools and methods. Most common is the use of search terms to go through a document set to find attorney names and legal language, leaning heavily on the first pass review process to help tag documents as being potentially privileged based a reviewer’s assessment.
This presupposes that attorney names are identifiable, which means maintaining lists of known legal parties, in itself a major challenge; the advent of name normalization techniques is helping move the needle in this regard. And search terms will likely bring up all that boilerplate language at the bottom of so many communications, just adding to the pile for further review unnecessarily.
Overall, search terms and attorney names are usually imprecise when it comes to identifying potentially privileged communications, prone to both false positives and false negatives, leaving first pass reviewers (or review processes) to shoulder the heavy burden of making judgement calls on which documents can be safely produced (non-potential privilege) and which should enter the universe of documents to be reviewed for potential privilege.
Enter H5 Matter Analytics® for Advanced Automation of Privilege Review
That’s where the new release of H5 Matter Analytics can provide a major advantage in document review. Adding to its already renowned features for review acceleration, H5 Matter Analytics adds new functionality to address the demands of tagging and logging documents for potential privilege, automating the most time-consuming functions in the privilege review workflow. Features include:
- Prebuilt classifiers to automate identification of law firms and legal concepts
- Customizable rules to:
– Tag and tier potentially privileged documents
– Create privilege reasons (default setting also provided)
– Detect potential privilege waivers
- Automatic exclusion of detected disclaimers and boiler plate language
- Advanced name normalization technology to tackle lawyer name variations
- Proprietary email thread viewer to clearly identify where lawyers and 3rd parties enter and exit conversations, drawing from top-level and subsumed email headers
- Email thread viewer for nuanced coding decisions at message level, branch level, or thread level and elimination of duplicate content
- Relativity integration
The benefits of these features will be evident to most document reviewers who have struggled with the privilege process. Any part of the process that can be effectively automated makes a world of difference.
While eyes-on decisions by legal counsel will still be a critical part of the privilege review process, the benefits provided by powerful name normalization, email threading functionality, and advanced language classifiers to better target and prioritize potentially privileged information, coupled with the automated functions for privilege logging, make H5 Matter Analytics a boon to any document review.
Click here to learn more about H5 Matter Analytics. To request a demo, contact us at info@H5.com.