If you've ever played the telephone game, you know it doesn't take more than one exchange to lose the meaning of the original message. Dealing with a variety of service providers presents the opportunity for confusion and disorder. Because the production process evolves as the documents are analyzed, there is often a need to adjust and make changes to the original plan. Change to even one step in the discovery process will affect every other step along the way. Failing to communicate consistently with every vendor involved can be catastrophic to the production. An example of this might be a case in which midway through a review it is discovered that there is a key piece of confidential information that now requires a privileged marking. This change will require that any document previously reviewed be flagged for new key terms and placed back into the review. All vendors will need to be made aware of this new protocol in a manner that is consistent with counsel's new instruction. Furthermore, the production team will need to be put on notice as to how this change will impact Bates stamps, confidential/privileged stamps, and any other production requirements. This is just an example of one change; the average e-discovery process will have multiple changes through the life of the project. The notification process must be repeated with the same level of consistency for every change made during the course of the discovery process to ensure accurate results. Investing in a single vendor provides one source of information and accountability from planning through production, a consistent communication protocol, and faster turnaround time.
Because document review is the most time-intensive and costly phase of the process, using current technology to reduce the size of the document collection is a good place to start. There are currently many tools on the market to manage, search, and cull ESI. Some of the most commonly used tools provide options such as predictive coding, de-duplication, near-duplication, concept searching, and email threading. Unfortunately, having experience in litigation does not give rise to expertise with these tools and their proper application. A specific type of technology may not be suited to a particular case, thus experts who are experienced with these tools and the best practices for using them on a case-by-case basis will reduce exposure to sanctions and significantly cut costs. Proper use of current technology can lessen the size of a document collection by targeting specific documents required for production, thereby minimizing the scope of the review. This concise collection of documents can now be reviewed by a small group of professionals.
Document review provides value beyond the mere categorization of documents as relevant or not relevant and the application of issue coding. The quality of document review is directly proportional to the experience of the team leading and performing it. A review team made up of specialists with both subject-matter expertise and review experience will not only lessen the amount of time and cost spent on review but also increase the consistency and accuracy of the results. The use of expert reviewers provides many advantages:
• Professionalism. Expert reviewers provide a level of professionalism acquired from experience in the field. Unseasoned reviewers do not have a sense of their value and indispensability to the project. They are more likely to quit before the project is complete, thus creating the need to hire and train another reviewer when the timeline is often at its most crucial.
• Confidence. An expert is confident in his or her review ability and does not require as much validation in the decision-making process. He or she can be relied upon to process instructions with ease and provide a desired output with consistency.
• Attention to Detail. A veteran reviewer will quickly recognize issues and bring them to the attention of those leading the review, allowing them to make adjustments that can save time and money. Some issues that may be found include problems with the review platform, identification of fundamental players, and variations in key terms unforeseen at the start of the review.
• Adaptability. Seasoned reviewers are able to make timely changes to their review method during the review based on new information provided by counsel. A major change to instructions or logic does not require a reevaluation of their entire routine; they can absorb the process and apply new information with ease. They will adjust quickly, discarding old information no longer applicable.
• Perspective. Experts in review or subject matter can hit the ground running and become familiar with the document collection faster because they won't have to overcome a learning curve. They are able to determine quickly whether documents require a detailed or cursory assessment, increasing the speed of the review. Subject-matter professionals can easily navigate the issues, because they have training in the subject field, its vernacular, and specific nuances. Through analysis these reviewers identify crucial documents that can challenge or validate earlier expectations.
In addition to the above benefits, the efficiency and speed gained will provide counsel with a manageable group of documents to work with and evaluate. Another factor to consider is the consistency of determinations made during review. Every time a document is reviewed by a different individual, the risk of inconsistent markings increases proportionally. Experts can provide a higher level of consistency, and they allow counsel to concentrate on other aspects of litigation and trial preparation.
The advancement of technology in the legal field, particularly as to how and what is gathered, culled, and reviewed, has given discovery a much larger role and effect in litigation. The use of technology to meet discovery obligations has created the opportunity to delve deeper into the facts of a case and create a more complete view of the issues. But with the increased amount of data now available, the likelihood of a privileged document being produced has increased exponentially. With that in mind, FRE 502 was enacted to address this problem. Although Rule 502 has addressed some of the issues, its broad interpretation, particularly in relation to what is deemed "reasonable," has left counsel without any bright-line guidance as to how it will be applied to their client's issues. The use of technology has given counsel the ability to handle discovery in a multitude of ways: keyword searching, sampling, culling, native-document review, etc. These advances help to increase the amount of data one is able to collect, cut the cost of human review, and shorten the amount of time spent on this phase of litigation, but they also bring about many new risks. With recent rulings by the courts regarding inadvertent disclosure under FRE 502, it is not clear how much effort is enough when it comes to document review for privilege. What is clear is that there must be some effort put forth by counsel to manage their electronic-discovery productions and some effort is given deference over no effort in the eyes of the court. Not only should counsel have an understanding of the steps their client's documents are going through to determine privilege but they must be able to explain the progression to the court. With this in mind, the use of technology is not the problem and we should let technology move us forward, but to meet privilege preservation standards under FRE 502 it is paramount that quality controls are put in place to mitigate the increased risk of disclosure that it can create. The following is just a sample of some decisions addressing the preservation of privilege and waiver under Rule 502.
In Relion, Inc. v. Hydra Fuel Cell Corp., 2008 U.S. Dist. LEXIS 98400 (D. Or. Dec. 4, 2008), 40 feet of files were collected by the plaintiff's counsel in paper format. These documents were reviewed by the plaintiff's counsel to remove any privileged materials. Subsequent to this review, the defendant's counsel was allowed to select the documents it wanted the plaintiff to produce. The plaintiff's counsel was provided with electronic, text-searchable copies of the documents that counsel for the defendant had selected. Four months after they had produced the documents, the plaintiff asserted that it had inadvertently disclosed documents to the defendant. The court, in making its decision regarding waiver of the documents, provided the following interpretation of Rule 502(b): "[T]he court will find the privilege preserved if the privilege holder has made efforts 'reasonably designed' to protect and preserve the privilege; conversely, the court deems the privilege waived if the privilege holder fails to pursue all reasonable means of preserving the confidentiality of the privileged matter." The court held that the plaintiff had waived the privilege, noting that the plaintiff had many opportunities to review the documents including two additional opportunities when the defendant provided the plaintiff's counsel with the hard copies and electronic, text-searchable copies they had selected, and concluding that the plaintiff did not use "all reasonable means" to preserve privilege.
In Eden Isle Marina, Inc. v. United States, 89 Fed. Cl. 480, 508 (2009), a case regarding the inadvertent disclosure of privileged documents under the Freedom of Information Act (FOIA), the court found that the defendant's adequacy of review procedures could not be assessed because the defendant did not adequately describe the privilege-review procedures. The court noted the following: "Here, defendant has provided scant information concerning the screening procedures it employed in connection with plaintiff's FOIA request." The court went on to note that the defendant did not provide any information regarding the scope of the review and whether the documents in question were ever identified as privileged. Additionally, the court pointed out that "all that the court can glean" from the affidavit provided by the defendant is that the documents had been reviewed twice, that the second review took "several weeks," that a specific number of boxes of material had been reviewed, and that a list of withheld documents had been created. The court believed that there was not enough detail provided about the review procedures taken to ensure that privileged documents were not released. The court went on to say that "[w]ithout such information, defendant has not met its burden to demonstrate the adequacy of its efforts to prevent the disclosure of privileged and protected material." Thus, the privileges were waived.
In Thorncreek Apartments III, LLC v. Village of Park Forest, Nos. 08-C-1225, 08-C-0869, 08-C-4303, 2011 U.S. Dist. LEXIS 88281 (N.D. Ill. Aug. 9, 2011), 159 documents were inadvertently disclosed to the plaintiff by the defendant. The defendant, with the use of an outside vendor, reviewed documents loaded into an online database for responsiveness, non-responsiveness, and privilege. After the review was completed, the defendant allowed the plaintiff to review all responsive and non-responsive documents presumably excluding any documents marked privileged. The inadvertent disclosures were discovered when the plaintiff attempted to use two of the privileged documents during a deposition. The parties resolved their dispute over all but six of the documents. The court stated that it "[had] little confidence in the reasonableness" of the defendant's safeguards when the only information they could provide to the court was that they thought marking a document as privileged would have prevented the vendor from placing it in the production database for the plaintiff to view. The court also noted the defendant's failure to run any basic checks on the database before it was made available to the plaintiff, that every document the defendant claimed was privileged was produced to the plaintiff's side, and that it took nine months for the defendants to realize that documents had been inadvertently disclosed. The court held the privileges were waived.
Experts are valuable because they are able to anticipate pitfalls in advance that would likely become larger issues for the e-discovery novice. Having a perspective to see the smallest nuances can prevent costly rework, missed deadlines, and the inadvertent release of privileged information.
Keywords: in-house counsel, J-M Manufacturing Co. Inc. v. McDermott Will & Emery, ESI, expert reviewer, e-discovery
Holly Dixon and Amy Romo-Loomis are assistant project managers at IE Discovery, Inc.