DOJ Antitrust Division’s December 2016 Revised Model Second Request: e-Discovery Tips for a Smooth and Compliant Response
The DOJ Antirust Division released its Revised Model Second Request in December 2016 which made both substantive changes and addressed e-discovery protocol and production concerns. Tracy Greer, Senior Counsel, Electronic Discovery of the Antitrust Division of the U.S. Department of Justice, elaborated on these changes in her white paper, Avoiding E-Discovery Accidents & Responding to Inevitable Emergencies: A Perspective from the Antitrust Division” (“White Paper”). On June 21, 2017, Ms. Greer spoke on a panel at a Women in e-Discovery meeting in Washington, DC, about the use of predictive coding and the filing of Second Requests where she discussed the changes to the Model and points made in her White Paper.*
Part 1 of this blog series provides a general overview of the Revised Model Second Request and Part 2 discusses the duty of candor and competence, and preservation and data holds. Part 3 details developing an e-Discovery plan and additional technical issues that were changed in the Revised Model.
Claw Back Systems
Privileged documents are the bane of any document review project. Finding privileged documents and attempting to claw back inadvertently produced documents is probably the most stressful part of discovery, especially when dealing with large Second Request reviews. The Division asserts that Rule 502 of the Federal Rules of Civil Procedure governs its policy on inadvertent production of privileged documents:
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
Note how the language of 502(b)(2)-(3) puts the onus on preserving privilege with counsel. That is, the holder of the privilege must communicate the “reasonable steps” taken – quality control procedures, knowledge of attorneys reviewing the privileged documents, supervision of the attorneys and their QC, etc.
Good discovery counsel communicate the details of their review protocols to clients so the protocols can be justified to investigatory agencies and courts if needed. In addition, discovery counsel can help mitigate an inadvertent disclosure by effectively searching for and asserting privilege with respect to all duplicates and related documents of the inadvertently produced items. As Ms. Greer notes in her White Paper, the issue of piecemeal disclosure of inadvertently produced documents is “complicated and time-consuming for the Division.” Pulling this information together in a timely fashion will ensure that your Second Request stays on track and does not damper your relationship with Division staff.
Establishing Client’s Burden
The Division insists that if counsel believes the production is too burdensome, such arguments must be supported with actual costs and facts. This is yet another reason to hire someone that can jump in early on and quickly determine a reasonable universe of data to retrieve so that counsel is prepared to negotiate with the Division. Real-time consultation of e-Discovery experts about the forecasted costs and time for particular productions can and should be conducted in order to help establish the client’s burden.
It is best to provide the Division with a specific and detailed breakdown of each line item cost and why the estimated data and review costs are necessary, as well as how the planned use of technology will be used in narrowing the scope of data. Having a competent discovery partner in place will help establish that counsel is working hard to provide the requested data, and that any claims of burden are legitimate.
For our final blog in the series, we will dive into (1) submission of a sample production and (2) the use of technology and technology-assisted review (“TAR”).
*Note: In her White Paper, Ms. Greer makes clear that “[t]he views expressed in this paper are [her] own and do not necessarily represent the views of the Antitrust Division or the Department of Justice.” Ms. Greer reiterated the same at the panel discussion in June.