An H5 LegalWeek webinar covers modern strategies for tackling privilege review effectively, accurately, and on budget.
Though data accumulation and analysis make many aspects of our lives easier, they create a minefield for lawyers and other discovery professionals. The more information an organization keeps, the more it needs to sort through during litigation or investigations. Potential designations of privilege might protect a portion of that information during a matter, requiring firms and organizations to go through the time-consuming and difficult privilege review process.
While many lawyers think of privilege reviews as a headache, they don’t have to struggle with the process like they did decades ago. Advanced technology has given the legal industry better ways to perform efficient and accurate privilege reviews. That was the focus of the LegalWeek webinar this past February 4 hosted by H5, a leading provider of eDiscovery and AI for managing sensitive data, entitled “Privilege Review 2.0: Revamping the Privilege Review Workflow to Work for You.”
Doug Austin, editor of eDiscovery Today, moderated the webinar, featuring Jeffrey Grobart, associate director of professional services at H5; Judge Andrew Peck (retired), senior counsel at DLA Piper; Dawson Horn, associate general counsel at AIG; and Twanda Turner-Hawkins, director of global litigation at Dematic Corp and KION Americas.
The panelists kicked off the discussion with an overview of The Sedona Principles of Protection of Privileged Electronically Stored Information (ESI). After all, modern discovery involves thousands—if not millions—of electronically stored documents, emails, direct messages, and more. The likelihood of a privileged document slipping through is significant, which is why the second principle encourages the parties and court to make use of the Federal Rule of Evidence 502(d) and similar state protections.
Avoiding Waiver: Rule 502(d) Order
Peck is a long-time proponent of FRE Rule 502(d) orders. While parties have some protection under 502(b), taking advantage of that protection often coincides with a court battle. Establishing a 502(d) order upfront is what Peck refers to as a “get out of jail free card.” With this in place, a piece of ESI slipping through doesn’t waive privilege or lead to a costly and time-consuming argument.
The panel briefly discussed the challenges of privilege determinations. “The mere fact that a document can be stamped ‘privileged and confidential’ does not necessarily make it privileged and confidential,” warned Horn. “There are a lot of legal principles that can be wrapped up in that sort of construct.”
It isn’t as simple as searching for boilerplate language or identifying the “to and from” of emails involving lawyers, firms, and consultants, in part because of the expanded role of the in-house department. “You don’t give legal advice in a vacuum,” said Horn. “It is somehow tied to some business opportunity, some business development. So, finding that line between where the in-house person is giving legal advice or may be giving business advice can be challenging.”
Here the panel questioned the best approach to privilege review and what businesses can do before litigation arises? Turner-Hawkins strongly emphasized training for legal and business partners to ensure they understand what is discoverable and privileged. “Be cognizant of what you’re putting in emails, including who’s in the email chain. And sometimes, just pick up the telephone.” She also encouraged organizations to focus on strong information governance and document retention policies. Businesses that delete obsolete materials greatly reduce the documents for review.
Improving Effectiveness with Enhanced Processes and Good Lawyering
Privilege reviews are often performed by outside law firms or vendors, leading Austin to ask how outside firms can make their privilege reviews more effective. Peck and Horn advocated for “good old-fashioned lawyering.” They have to get to know how their client’s organization functions. “There has been a philosophy, particularly for the senior person on the outside counsel team, that they can bifurcate the discovery from the substance of the case,” said Horn. “That’s just not true. It’s particularly not true in the case of making a privilege call.”
In-house counsel has its place in that process, too, and should proactively get involved. Turner-Hawkins advised in-house teams to hold kick-off meetings, help outside counsel learn about the organization, and conduct quality review checks of the results.
Next, the panelists dove into the technical aspects of privilege reviews. Many firms and vendors focus on keyword searches. It’s time-consuming, expensive, and not particularly accurate. Grobart explains how to improve the process, affirming that it goes back to a strong information governance program and reducing document volume.
He strongly recommended advanced privilege determinations. “Identification of potential privilege while it still resides at the corporate level, wherever possible, is always advantageous,” said Grobart. “If you know what it is before it leaves the organization, and you can identify that for outside counsel or other vendors, it puts you miles ahead of where you otherwise might be.”
Opportunities for Improving Privilege Reviews
In reaching the heart of the discussion, Grobart described three opportunities to improve privilege reviews alongside illuminating H5 case studies.
- Opportunity #1 is recognizing that not all keyword hits during a privilege review are equal. Some are more important than others, which allows a firm to prioritize. Creating tiers based on the importance of keyword hits and concentrating on a careful review of the top-tier results is an effective strategy.
- Opportunity #2 focuses on identifying and labeling privileged documents before disputes arise. The development of custom classifiers can enable an organization to take a proactive role in the review process. Stakeholders in an organization know its environment, jargon, and practices better than anyone else and are the right people to tailor the business’s privilege determination.
- Opportunity #3 comes with advancements in AI tools. Incorporating automated technology to drive more consistent coding across matters is now possible. In conjunction with Opportunity #1, the process significantly reduces the volume of documents for review.
The panel wrapped up with a few fundamentals: organizations should lay the groundwork with strong information governance and document retention policies. In-house counsel shouldn’t be afraid to work closely with their outside firm or vendor on how best to tackle the privilege review process and tailor the review to the organization’s specific goals, circumstances, risk tolerance, and budget.
If you have a LegalWeek login, you can watch this Webinar OnDemand via the OnDemand menu item. Scroll down to February 4 and choose “Privilege Review 2.0: Revamping the Privilege Review Workflow to Work for You.”
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