Power-Up Your Privilege Review: Protecting Privileged Materials in Ediscovery

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1 Power-Up Your Privilege Review: Protecting Privileged Materials in Ediscovery Jeff Schomig, WilmerHale Stuart Altman, Hogan Lovells Joe White, Kroll Ontrack Sheldon Noel, Kroll Ontrack (moderator) April 29, 2015

2 Sheldon Noel, Kroll Ontrack (202) Sheldon Noel, Business Development Manager, Kroll Ontrack Based in Washington, DC Advises attorneys and other professionals from law firms, corporations, and government agencies on all facets of legal technology issues, including electronic evidence and discovery matters An attorney with more than twelve years of experience in a unique combination of litigation, regulatory and complex project management roles 2

3 Jeff Schomig, WilmerHale (202) Attorney at WilmerHale, in Washington DC Practice includes representing clients in government regulatory and criminal investigations and in civil litigation Also focuses on advising clients and other attorneys concerning attorney-client privilege Serves on the Privilege Standing Committee, the primary advisory body to the firm's lawyers on attorney-client privilege and work product doctrine issues 3

4 Stuart Altman, Hogan Lovells (202) Partner at Hogan Lovells in Washington DC Practice includes white collar criminal investigations and defense, including the representation of clients before various courts and regulatory agencies, conducting internal investigations, compliance and corporate governance matters, and complex civil litigation Extensive experience in representing and counseling companies and individuals in matters involving the Foreign Corrupt Practices Act, and he has significant experience working with companies in connection with data security and privacy issues 4

5 Joe White, Kroll Ontrack (952) Application Support and Training Team Lead, Kroll Ontrack Advises corporate and law firm clients on ediscovery.com Review capabilities offered by Kroll Ontrack Over ten years of legal industry experience, helping clients with solutions involving the organization, review, and production of electronically stored information (ESI) 5

6 Agenda Introduction» Early Privilege Preparation» Privilege as a Component of the Case Strategy» Technology Challenges associated with Privilege Legal Framework» Rules» Case Law Strategy» Privilege Log» Leveraging Technology Conclusion 6

7 Introduction 7

8 Privilege: Early Preparation is Key Look at the bigger picture and incorporate strategic considerations into privilege discussions Many attorneys focus too much on the privilege log as a separate part of the discovery process Begin planning how to handle privilege documents as soon as possible at the collection stage or sooner 8

9 Bring Privilege into Strategy Discussions COST Producing a large privilege log can be costly Dealing with privilege issues without a strategy in place can add to the cost TIME Time can be an issue and should be addressed early in the process QUESTIONS Consider questions that the discovery team might have for the client relating to privilege 9

10 Privilege Review & Ediscovery Technology Today, the realities of Big Data make privilege reviews more complicated than ever Technology is here to help: 10» Determine which documents the legal department knows to contain privileged information» Examine file folder paths» Review s in context review threads, not just single s» Use categories, topic grouping, and predictive coding technology to filter through documents» Plan to use search terms and highlighting to speed review» Consider implications of international documents

11 Legal Framework 11

12 Privilege: Case Law Victor Stanley, Inc. v. Creative Pipe, 250 F.R.D. 251 (D. Md. 2008) 12» The defendants inadvertently produced privileged documents to plaintiff, after backing out of a proposed clawback agreement initially supported by both parties» The court found that the defendants failed to take reasonable precautions to prevent [disclosure], including the voluntary abandonment of the non-waiver agreement that both parties originally sought, and that they failed to demonstrate that [their] keyword search was reasonable. The court also expressed a degree of skepticism as to the reasonability of manual review of document title pages to evaluate whether entire documents needed scrutiny» The court noted that [t]he only prudent way to test the reliability of the keyword search is to perform some appropriate sampling of the documents determined to be privileged and those determined not to be in order to arrive at a comfort level that the categories are neither over-inclusive nor underinclusive

13 Privilege: Case Law Mt. Hawley Ins. Co. v. Felman Prod., Inc., 271 F.R.D. 125 (S.D. W. Va. 2010) 13» The plaintiff over-produced ESI by roughly 30%, including the inadvertent production of 980 documents identified as privileged» The plaintiff attempted to claw-back only 377 documents, including an important » The court held that the plaintiff had waived privilege on the , determining that although the plaintiff had hired an ediscovery vendor and used software to narrow production, it unreasonably failed to perform simple keyword searches that would have revealed the privileged in question» Finally, the court observed that the plaintiff had delayed discovery, had an incomplete privilege log, and failed to point to overriding interests in justice that would excuse the inadvertent disclosure

14 Clawback Agreements The best way to prevent inadvertent disclosure is to avoid producing privileged documents in the first place However, production of privileged material is inevitable Clawback agreements make this less dangerous for both sides 14

15 Clawbacks & Waiver under Rule 502 Rule 502(b) establishes a default rule that allows for the clawback of privileged material if:» The disclosure was inadvertent» Reasonable steps were taken to prevent disclosure» Prompt, reasonable steps were taken to rectify the error Consider Rule 502(d)» The Court may approve clawback agreements between the parties» These agreements protect both parties and eliminate the need to show reasonableness 15

16 Strategy 16

17 Categorical Privilege Logs Substantiating privilege claims by category increasingly accepted as alternative to traditional, document-by-document privilege log Thought Leaders E.g., Sedona Conference (See The Sedona Principles: Best Practices Recommendations & Principles for Addressing Document Production, at 24 (2d ed. 2007); Magistrate Judge Facciola, D.D.C. (ret.). FRCP Advisory Committee The rule does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection. Details concerning time, persons, general subject matter, etc., 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. Fed. R. Civ. P. 26 Committee Note (1993) Common Law See, e.g., United States v. Gericare Medical Supply Inc., 2000 WL at *4 (S.D.Ala. 2000) ( The defendants have not explained how a categorical privilege log impaired their ability to test the plaintiff's claim of work product protection, which rises or falls as a unit. ). State and Local Discovery Rules NY Uniform Rules for Supreme and County Courts, S.D.N.Y., E.D.N.Y. Local Rules and Del. Court of Chancery Guidelines for Practitioners all declare categorical privilege logs to be presumptively sufficient 17

18 Categorical Privilege Logs Parameters Vary Requirements for categorical log still not well defined» See, e.g., McNamee v. Clemens, 2013 U.S. Dist. LEXIS , *6 (S.D.N.Y. Sept. 18, 2013) ( While it may, in some cases, be appropriate to identify purportedly privileged documents by category, broad classes of documents with exceedingly general and unhelpful descriptions will not satisfy defendant's obligations. ) (citation omitted) Some courts still reject categorical logs outright» Neelon v. Krueger, 2014 U.S.Dist. LEXIS , at *3-*4 (D.Mass. Dec. 19, 2014) ( The first problem is that the plaintiff does not assert the privilege as to individual documents but rather as to categories of documents. As discussed, infra, this is no more than a variant of a blanket assertion of the privilege, which, as noted, does not comply with the requirements of the law. ); modified in part by 2015 U.S. Dist. LEXIS 29146, at *12 (D.Mass. Mar. 10, 2015) ( Plaintiff could have provided more precise dates, an identification of the nature of the communications, the approximate number of documents involved, the name of all individuals receiving or sending particular communications, and the general subject matter of the withheld documents. ) 18

19 Take Advantage of Categorical Log Identify Categories» This is both practical and strategic» Categories can be a double-edged sword Expect meet & confer in lawsuit or similar pre-production conferences with investigating agency Organize Privilege Review to Accommodate/Leverage Categories Set client expectations» Categorical log can still be expensive and resource intensive 19

20 Review & Technology: Workflow Automated Workflow» Can be structured to capture various types of privilege to be sent automatically to corresponding first and second pass reviewers» Will queue up the correct documents in real time, while predictably and reliably enforcing coding requirements» Can automatically provide threads for more efficient review and better privilege comprehension» Can dynamically prioritize documents by relevance» Will make the privilege log process easier 20

21 Review & Technology: Predictive Coding Leverage predictive coding in conjunction with other ediscovery technologies (key word searching, topic grouping, etc.) Use predictive coding for privilege review, but be aware of the realities:» Predictive coding is very useful for determining which documents may contain privileged information, but humans will still play a role» Metadata is extremely important for training, so strive to develop a robust set of teaching examples with relevant attorney names» Be aware of foreign language documents and adjust your training strategy accordingly» Pay close attention to work product privilege training 21

22 Review & Technology: Quality Control Quality control measures:» Occur well before production» Bolster the reliability of the review process» Help prevent inadvertent disclosure Predictive coding as a quality control tool:» This technology not only aides in locating privileged documents before review, but can also act as a fail-safe and help prevent inadvertent disclosure» Its use can also enhance the defensibility of the process» Sampling plays a significant role 22

23 Conclusion 23

24 Build Client Expectations around Privilege Consider the client s perspective and ensure expectations are realistic and achievable Clients should understand that:» Locating privileged documents is a serious and ongoing effort» Technology plays a major role in privilege review 24

25

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