View ‘Protecting Privilege in Document-Intensive Cases’ On-Demand
Addressing the Increasing Challenge of Keeping Attorney-Client Communications Confidential
Preventing the inadvertent disclosure of privileged information in litigation is increasingly challenging. Fortunately, innovation in eDiscovery technology combined with process and workflow improvements can help you meet the challenge of protecting privilege.
Gene Albert is the CEO of Lexbe, and a frequent speaker and author on eDiscovery and legal technology issues. He has his MBA from UT Austin, and his JD from Southern Methodist University.
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Topics covered include:
- Increasing Risks with Protecting Privilege & Logging
- Privilege Logging Requirements
- Email Headaches
- Modern High-Speed Keyword Search
- Causes of Inadvertent Privilege Release and Waiver
- Categorical logging to the rescue?
- Optimized Workflow & Automatic Logging
- NearDup Analysis to Catch All Versions
- Tips & Recommendations
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6. ● Increasing Risks with Protecting Privilege & Logging ● Privilege Logging Requirements ● Email Headaches ● Causes of Inadvertent Privilege Release and Waiver ● Categorical logging to the rescue? ● Optimized Workflow & Automatic Logging ● NearDup Analysis to Catch All Versions ● Tips & Recommendations Agenda
7. Digital Information Created, Captured, Replicated Worldwide4 3 2 1 2005 2010 2015 Source: IDC Digital Universe Study (2012) Zettabytes* 2.8 zettabytes of information were created and replicated during 2012, a 56% increase from 2011 (IDC) Voip Email iPhones Peer-to-Peer Online Storage Digital Cameras Facebook | LinkedIn DropBox | Backup Devices Elastic Storage | SaaS | Google Streets Personal Blogs | Skype | World Satellite Images Personal Scanners | Customer Service Recordings Public Webcams | Google Goggles | Netbooks | Cloud Instance Servers | PaaS
8. More ESI means more documents to review for privilege and work- product (Privilege). Use of keyword search and technology assisted review instead of linear review for productions. Use of outside reviewers with lessor case and organizational knowledge; or training and skill. Typical existence of many duplicates or near duplicates of documents. Heavy use of email means that privileged communications are documented more than ever. Email chains raise thorny issues of what to log and how to log.
9. The federal law is based on FRCP 26(b): “When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Does not address even the traditional elements of the log (date, time, sender, subject), much less the more complicated issue of how to handle email chains, etc. FRCP Are Not Specific
10. “The producing party shall disclose the following information about each such document withheld: a description of the document withheld with as much specificity as is practicable without disclosing its contents, including: (a) the general nature of the document; (b) the identity and position of its author; (c) the date it was written; (d) the identity and position of its addressee; (e) the identities and positions of all persons who were given or have received copies of it and the dates copies were received by them; (f) the document’s present location and the identity and position of its custodian; and (g) the specific reason or reasons why it has been withheld from production or disclosure. S.E.C. v. Nacchio, 2007 WL 219966 (D. Colo. Jan. 25, 2007) Courts Traditionally Require Specific Logging
11. Courts have often held that an incomplete privilege log can result in waiver: “General, conclusory assertions” that some documents were privileged, without including specific reference to the opinion letters in the privilege log, were insufficient under Rule 26(b)(5) and resulted in waiver. . .” In Nordock Inc. v. Systems Inc.,No. 11-C-118 (E.D. Wis. Oct. 5, 2012) Draconian result makes complex privilege issues difficult to resolve. Contra: “Finding a waiver for an inadequate log is disfavored.” Facciola & Redgrave, Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola Redgrave Framework, 2009 Fed.Cts.L.Rev. 4 (Nov. 2009). http://www.fclr.org/fclr/articles/html/2009/facciolaredgrave.pdf Use It or Lose It
12. Email body may be privileged and attachments not, or visa versa. Complications of separating emails and attachments when generally they should be viewed together. It’s possible to break (separate) email families, but usually not best as it can cause review and production questions and problems. If attachments have been separately produced then withholding in privileged email families may be acceptable. Redacting out privileged information in email families can be a good solution. May be addressed specifically in an ESI/Rule 26 Agreement. Email Bodies and Attachments
13. An email body contains multiple emails nested or embedded in text (aka ‘Email String’). Danger of hiding non-privileged information with minor privileged component. Opposite concern of disclosing privileged communications indirectly or in pieces. Portions of string may contain different parties, dates, subjects, etc. Often change mid-stream. Some courts suggest separate logging but that is time-consuming and difficult. Redaction of privileged portions is often the best solution. Email Strings
14. A recent New York state rule (Rule 11-b) specifically addresses email chains and requires single extended logging and may be influential elsewhere. “[E]ach uninterrupted e-mail chain shall constitute a single entry” which is required to include in the log: An indication that the e-mails “represent an uninterrupted dialogue” Beginning and ending dates and times of the dialogue The number of emails within the dialogue The names of all authors and recipients Information sufficient to identify each person such as name of employer, job title, and role in the case to allow for a considered assessment of the privilege claim. 22 NYCRR §202.70(g) http://www.nycourts.gov/rules/trialcourts/202.shtml#70 NY Allows Email Strings with Extended Logging
15. Categorical Designations refers to the practice of separating privileged documents into categories and possibly not logging some that are clearly privileged. Comments to the FRCP 26 (1993) refer to categorical logging: Document-by-document logging “may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories”. Examples of possible categorical logging include: –Communications exclusively between a party and its trial counsel –Work product created by trial counsel, or non-party agents, after action commencement –Internal communications within a law firm, governmental law office, legal dept, etc. Memorandum from the New York State Bar Association Commercial and Federal Litigation Section to the Office of Court Administration (May 14, 2014)
16. NY State Rule 11-b establishes a “preference” for the use of “categorical designations”: Parties are expected to discuss the during the meet-and-confer process. Requires a “responsible attorney” for the producing party to provide a certification setting forth specific facts supporting the privileged status of the materials in each category. A party who resists the categorized approach and instead insists on the logging of each document to be withheld may be subject to cost shifting, including attorneys’ fees, incurred by the producing party in preparing such a log, upon a showing of good faith by the producing party. Parties to complex commercial matters likely to involve significant privilege issues are encouraged to split the costs of hiring a “special master” to assist in the efficient preparation of privilege logs. NY Rule Establishes Preference
17. Hits – Highlighted from search Original – Native if available HTML – Extracted text from Native Page – One page at a time PDF – Viewing & access Text – OCR of images Redacted – Confidentiality or Privilege Annotated – Integrated Review Platform
18. Coding in Doc Viewer -Code 1 Doc at time -See Email Families -Auto-code families Mass Coding -Code Many at Once -Multi-Doc Edit -From Search/Filters
19. With a Dual-Index approach the search engine indexes both text extracted from Native files (email, attachments, spreadsheets, etc.) and imaged file OCR text (TIFF, JPG or PDF). Most comprehensive approach minimizes potential for lost and unsearchable data, and finds more privileged documents
20. Privilege Log Auto-Creation -Metadata extracted from natives -Email date/time, sender, receiver, subject -Privilege and Work Product coding used -Privilege log automatically generated for review
21. Privileged and sensitive information may be redacted prior to production. If native docs are produced, the original natives should be withheld as they can’t be directly redacted. Redaction is done on TIFF, other imaged, or PDF converted versions. For TIFFs, text must be re-OCRed. PDFs must have text layer re-OCRed. Container files (e.g., MSG, ZIP) including redacted data should be withheld. Build in time for QC procedures.
22. What is It? Near Duplicate Detection, or ‘NearDup’, technology automatically recognizes similar documents within an eDiscovery document collection Examples: Separately scanned documents; multiple versions of a Word document that are slightly different due to minor edits, reformatting, etc.; an original document and one with handwritten notes on it; emails continue a conversational ‘chain’ or ‘thread’. Unstructured Documents NearDup Groupings
23. Example Linear review found privileged documents found 9 out 10 times, but one missed Benefit Find privileged documents with text similarity that can be easily missed otherwise
24. Example Similar versions of a Privileged Document are shown in the Document Viewer Benefits Follow the trail from one privileged document to others. Identify privileged documents that might otherwise be missed
25. Feature Description Report identifies inconsistently coded privilege and work product codings Benefits Reduce privilege errors Avoid sole reliance on human coding consistency Establish safeguards to help maintain privilege
26. Communicate with Opposing Counsel Early and Document Efforts –Rule 26 Meet & confer subject Negotiate a Rule 26 Clawback –Avoid inadvertent waiver o Determine if categorical logging can be done –Get specific agreement or order to avoid waiver risk Deliver log contemporaneous with production –If cannot at least do before depos to avoid prejudice to opposition Consider redaction of email strings and attachments rather than wholesale withholding Negotiate specific provisions in ESI agreements/orders if possible Consider Special Masters in complex cases
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