Porous Privilege

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Electronic discovery is the source of a lot of new and often unexpected headaches for litigators. And one problem in particular seems to be growing: inadvertently revealing privileged documents to opposing counsel.

“It happened with paper, too, but it happens all the time in e-discovery,” says Craig Ball, a Montgomery, Texas-based attorney and electronic discovery expert.

According to a survey conducted by the ABA Digital Evidence Project, a working group of the Section of Science and Technology Law, 12 percent of respondents reported privileged information was inadvertently produced during the gathering of electronic evidence.

It’s mainly a matter of volume. The discovery phase of a trial can involve millions of pages of documents from e-mail, word processing, instant messaging, handheld devices or even deleted data that has been recovered and restored.

“We had a few cases in the late to mid-’90s like Exxon Valdez that involved a billion pages. … We used to joke that some of us would be dead before we’d finish reviewing the documents,” says Joe Romanowski, vice president of product strategy for Zantaz, a Pleasanton, Calif.-based litigation support company. “A huge case used to involve millions of pages; now that’s an average case for us.”

To control the flow of privileged documents, lawyers need to be aware of special problems with electronic documents and try to account for them. “We would like to have the same processes as in the paper world, just with a few extra steps,” Romanowski says.

The standard approach is to create a privilege log–a list of all documents that involve attorney-client privilege, work product or legal advice that cannot be used in court. To do that, legal teams usually follow a couple of steps. The first, and often most difficult, is to retrieve copies of e-mail and other documents from a plaintiff, which can cost millions of dollars if a large company or organization is involved. Such a case usually means lawyers will have to try to recover copies from often unreliable backup tapes from the time period covered by litigation. Then they need to scan paper documents and import all electronic documents into a single database.

At that point they can take documents and put them in a litigation support system like Summation or Con­cordance. Using specialized software, the lawyers can weed out most duplicate copies, perhaps millions of documents. They can use search software to look at names, document metadata, Internet addresses, subject matter and specified date ranges, which may indicate a document might involve privileged communications. Those documents will be placed into a file of potentially privileged documents.

Typically, a young associate will review the documents, flagging those that are potentially privileged. A senior attorney on the case will then give flagged documents a read, making the final call on which are privileged and for what reason. It’s a simple, straightforward system. But like any war plan, it tends to fall apart once the battle begins.

Data Debates

One problem is that privilege is a subjective matter, and opposing counsel can spend days in court debating whether data is legitimately classified as privileged. Of­ten lawyers from the same side will reach different con­clusions on the same document.

Several factors tend to conspire to ruin even the best-organized legal operation. For example, duplicate copies may be forwarded even though a different copy has been labeled privileged. And e-mail makes it easy for privileged documents to be forwarded to people who should not have them.

And today’s search technology is still imperfect.

In the beginning, companies scanned paper documents using optical character recognition software, turning them into digital, searchable copies. But OCR software was notorious for adding spelling mistakes, making it difficult to search for key words.

Even now that most documents begin in digital formats, the spelling problem hasn’t gone away. “Once OCR got better, spelling got worse,” Romanowski says. “People just don’t pay attention to spelling in e-mail. Messages from BlackBerrys are even worse.”

Procedural Proposals

The handling of privileged documents is such a thorny issue that a U.S. Judicial Conference committee is developing proposed new Federal Rules of Civil Pro­cedure for dealing with such documents. The work is being done by the Civil Rules Advisory Committee of the Standing Committee on Rules of Practice and Procedure.

The chair of the ABA’s Digital Evidence Project, attorney George Paul of Phoenix, notes that the handling of privileged documents is one of the most controversial aspects of proposed new civil procedure rules. Proposed rule 26(b)5(B) includes a clawback provision that would apply to any type of document involved in discovery.

Under the proposed rule, if one side were to claim a document is privileged after producing it to opposing counsel, the side that received the document would have to return, sequester or destroy the document and retrieve any copies that it distributed, pending a court ruling on the document’s admissibility.

Privileged documents, including inadvertently produced documents, are now handled according to different rules and standards in each jurisdiction. “This is huge,” Paul says. “The rules aren’t supposed to be about substantive matters of law, and a lot of lawyers think this rule would effectively close an issue that should be decided by the courts.”

In the meantime, attorneys can follow a few simple rules to try to limit this problem and streamline the trial:

• First, opposing counsel should meet and negotiate as discovery begins. Part of those negotiations ought to be an understanding of how privileged documents will be handled, as well as when and how to debate which documents are properly labeled as privileged.

• To prevent inadvertent production, lawyers should avoid producing documents on a rolling basis. Instead, produce documents in batches, making sure to check for documents that should not be produced.

• Only the most senior attorneys should be allowed to send documents to the other side during discovery.

• Attorneys should not rely on search technology to catch everything. It is important to make sure human eyes check as many documents as possible.

Romanowski believes law firms and their clients need to prepare ahead of time for e-discovery. In particular, firms should identify documents that are likely to be subpoenaed.

“With a lot of clients, it’s often the same documents that get used over and over again,” he says. “There’s no reason you shouldn’t prepare ahead of time and minimize your risk.”

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