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Reduce Risk, Save Money: Accelerating Privilege Review Responsibly

Stakes are high, and costs are growing. Sound familiar? More often than not, privilege review is the most expensive component of discovery review. It is also one of the most difficult discovery review workflows to manage efficiently. In addition to the sheer volume of documents that are subject to privilege review in modern litigation, parties are often left to tailor and justify their privilege assertions in the absence of judicial definition. Combined, these problems of data volume and unclear definition create ample room for the most well-meaning parties to introduce possible risk and errors into their privilege review process.

Attorney-client privilege

In many cases, the work largely begins (not ends) with the completion of responsive review.  If, for example, one or more custodians involved is in-house counsel, you can bet that a majority of the documents associated with them will be flagged for privilege review. And even for data related to  custodians not performing a legal function, keywords most typically used by law firms and vendors to identify potentially privileged documents (e.g., “lawyer”, “counsel”, “law firm”, and “privilege”), end up casting an overly broad net that captures more documents than likely necessary to effectively protect against inadvertent disclosure.

In addition to the mechanics of populating your privilege review queue,  the interpretive work of making consistent privilege calls across the full set of responsive documents  is no small feat. This process is fraught with nuanced questions like whether disclosure to a third party indeed waived privilege in a particular communication (and by extension, other communication with similar content), or whether legal advice being discussed between non-attorneys actually constitutes privilege or not. Even in-house lawyer communications present their own interpretive challenges, since sometimes these communications connect to their role as  legal counsel (enabling privilege), while other times these communications connect to an additional non-legal business role they play (not subject to privilege).

No rest for the weary here, but FRCP Rule 502(d) does provide a bit of a lifesaver in these choppy waters. As it relates to waiver due to disclosure, 502(d) allows courts to enter orders making it so disclosure does not trigger waiver (regardless of action/intention taken by producing party). This is not meant to be a carte-blanche on fast and loose privilege review, but rather a helpful way to provide space for parties to  implement novel mechanisms for scaling their privilege review without risking severe exposure. 502(d) therefore sets you up to level up your privilege review while minimizing any potential drawbacks for doing so.

A few technological innovations you might want to consider for your next round of privilege review:

  • Leverage email and metadata analytics reporting to isolate the entire list of email addresses and domains associated with law firms. Identifying potentially privileged documents with this information will boost the comprehensiveness of your initial privilege review set, while helping you isolate key names in documents more quickly to help you make quicker determinations at the document level.
  • Undertake name normalization to model all the possible permutations for counsels’ names, email addresses, and titles. This will similarly boost comprehensiveness in identifying potentially privileged documents while helping you make quick determinations at the document level.
  • Rather than pushing forward on a broad net keyword approach to populating your privilege review queue (e.g., “lawyer”, “counsel”, “law firm”, and “privilege”), an upfront analysis on a sample set of data to see what these keywords are actually returning back could be helpful. Prioritize your analysis on documents that are not also being hit by attorney name terms, focusing on just the documents hit only by one or more of these broad keywords. Through this analysis, you may uncover some patterns that allow you to further specify these terms that reduce the amount of over capture. You may even find that one or more of these broad keywords should not be used since on their own they are not bringing in likely privileged material.
  • Integrate email threading to connect related communications that might not otherwise appear together. This will accelerate your review by grouping assessment of connected communications into a single analysis. Email threading is also helpful for quality control in identifying inconsistencies in privilege review assessments.
  • If possible, use email threading visualization tools that allow reviewers to more easily see who exactly is included or removed from a messages along an email thread as it progresses and branches out through various replies and forwards.

The key to successful privilege review is being deliberate about the process you design and implement, and specific about the tools you are integrating into it. Remember that the key challenges with privilege review are pushing through a substantial volume of data, while also being consistent with your assessments across this volume. There are levers available to you to make privilege review less complicated, expensive, and risky. Set-up 502(d) to give you space to innovate on your current privilege review practices. Leverage data analytics to develop  a robust set of attorney name and keyword search terms to optimize how you populate your privilege review queue. Integrate email threading into your workflow to streamline priv review and implement targeted quality control.  In tandem, putting this infrastructure together will go far in transforming your current privilege review practice.

 

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