Six Tips for Protecting Your Client’s Privileged Information in E-Discovery

1.     Work with the client to obtain a list of in-house and outside counsel that have rendered legal advice to the client on any matter within the time frame of discoverable material.  Even when your client provides names of known counsel, new attorneys are always found during the course of the review that the client was unaware provided input on their matters.  The review team manager should keep a current list of these attorneys, and distribute it to the entire review team whenever new names are added.  The review software’s privilege filter should also be updated at this time.  (See #2 below)  Seasoned review attorneys are trained to keep a keen eye out for nicknames, common misspellings and commonly used initials of the attorneys.  This information should also be added to the privilege list, and if possible, the privilege filter.

2.     Engage with your technology vendor to convert your list of attorneys into a privilege filter search to be run across the entire database of documents before they are reviewed by your team of contract attorneys.  By running this filter, the provided terms are highlighted to alert the review team to their possible existence in the document being reviewed.  This is a valuable tool available in most discovery platforms that provides an added layer of protection against inadvertent disclosure of privilege.  This step is vital in the defensibility of the entire process of the review.

3.     Find out the key legal hold dates implemented in the case.  It is essential to establish when “anticipation of litigation” would have been triggered for work product claims.  Metadata, which shows a document’s creation date, may provide further insight into when the client and counsel may have anticipated litigation concerning the matter at hand.

4.     Understand which metadata will be produced and whether the productions will be in native format or produced in TIFF images only.  This is usually agreed upon between the parties at the onset of discovery.  In today’s digital age, this is where potentially privileged material is most likely to lurk undetected.  Most word processing programs utilize a form of electronic track changes, so that everyone’s edits are electronically logged.  Some of those edits may be created by lawyers, thus potentially establishing a basis for a privilege claim.  Many review platforms have a “hidden data utility tool” that can alert reviewers to the existence of hidden data in a document.  When this feature is engaged, the review team then knows to review that particular document in its native application to uncover the hidden data.  For example, there may be privileged communications in the notes section of a PowerPoint presentation.

5.     When conducting your review, employ multiple layers of review to minimize the risk of privileged material being inadvertently produced.  Two of those layers are discussed above — utilizing a privilege filter and using the platform’s hidden data utility tool.  Additional steps in your review should include quality control checks performed by a second level privilege review team.  Also consider running separate queries to identify documents that contain privileged terms but that were not flagged as “potentially privileged” during first level review.  Further, you should always re-run the privilege filter prior to productions, as new names may have been added that were unknown when portions of the review set were reviewed.  Quality checking should continue while drafting the final privilege log.  Check to make sure identical and similar documents are coded consistently, and be aware of any additional attorney names or issues that may not have been apparent during the earlier reviews and quality checks.

6.      Encourage your client to implement a claw back agreement at the commencement of discovery, if possible.  Such agreements help your client to protect its privilege in cases where privileged materials are inadvertently disclosed.  In cases governed by the Federal Rules of Civil Procedure, FRCP 26(b)(5) allows parties to request that inadvertently produced privileged material be returned, sequestered, or destroyed, and otherwise not used in the course of the pending litigation.  Rule 26(b)(5)  also establishes that such inadvertent disclosure does not waive the attorney client privilege in the pending litigation.

The content of this post is informational in nature and not to be construed as legal advice.

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