Trends and Best Practices inE-Discovery Privilege Review  Catalyst Best Practices and Workflow           John Hokkanen    ...
Speakers           John Hokkanen           Director of Search & Analytics Consulting           jhokkanen@catalystsecure.co...
“If there is a hell to which disputatious,uncivil, vituperative lawyers go, let it be onein which the damned are eternally...
What is Privileged? Attorney-Client Privilege    Communication between     attorney and client    For the purpose of obt...
Waiving Privilege   CC or Forward to 3rd parties   No expectation of privacy   Produce a privileged document    (unless...
You can’t un-ring a bell!   If there is a smoking gun document, you are screwed, even if you    have a valid clawback!!  ...
FRE Rule 502 and FRCP 26(b)(5)   Rule 502(a) Subject matter waiver     FRCP 26(b)(5) – Produce what’s not privileged   R...
Rule 502 and FRCP 26(b)(5)   Rule 502(a) Subject matter waiver  FRE 502 (b) – Default if no Clawback Agreement   Rule 50...
Rule 502 and FRCP 26(b)(5)   Rule 502(a) Subject matter waiver   Rule 502(b)(d) – Court-approved Agreements    FRE 502 I...
Approved stipulation language from cases:   “[I]nadvertent production of any confidential, privileged, or work    product...
Protecting Privilege Workflow   Search       Categorize        Review         Quality Control                             ...
Enhanced Search  SearchOrganizations  NamesLegal Terms
Enhanced Search  Search         Goals of search                    Capture 100% of privileged documents                 ...
Identifying External Organizations   Search       1. Obtain list of firms used by client                2. Develop viable ...
Identifying Critical Individuals   Search        1. Obtain list of internal and external individuals                    an...
Identifying Critical Individuals   Search        1. Where email aliases known, use them.                 2. Where email al...
Leveraging Terms  Search        1. Develop search list of most commonly used                   legal terms in privileged c...
Privilege Search – Multi-Language  Search                 Non-romance languages (Japanese, Chinese,                  Kore...
Document Categorization Categorize Attorney to  Attorney Attorney to    Client Attorney toClient + Other Attorney →   Vendor
Document Categorization Categorize       Social network analysis                     Categorize documents by likelihood ...
Privilege Categories Categorize       Targeting potentially privileged documents                   through author / recip...
Privilege Category Example                                  Client / Counsel                                  Communicatio...
Other Categorization Methods Categorize       Search hit (Counsel; Firm Name; Legal Term)                  Original fold...
The Facciola-Redgrave Framework Categorize       Background Attorney to  Attorney Attorney to    Client Attorney toClient...
The Facciola-Redgrave Framework Categorize    Asserting and Challenging Privilege Claims in               Modern Litigatio...
The Facciola-Redgrave Framework Categorize    Starts at Rule 26(f) Meet and Confer                    High level of Judic...
Privilege Categories: Facciola-Redgrave Categorize      Privilege Category                    “…identifies documents and E...
Objective Indexing: Facciola-Redgrave Categorize       Privilege log is not required                  “readily available...
Privilege Review  Review Automated  Workflow  Integrated Privilege Log   Creation
Privilege Review  Review          Automated rule based workflow to route                   documents to your privilege re...
Privilege Review  Review          Although the contents of a log may vary, as a                   general overview, we re...
Privilege Review  Review         Privilege log generator integrated into customizable                 review form         ...
Privilege Review  Review          Use sentence starters to ensure consistency and                   speed up log creation...
Suggested Practices for Documenting Privilege  Review          Review each document (post initial Quality                ...
Production Quality ControlQuality Control       Coding      Validation Email Thread / Near Duplicate   Statistical   Samp...
Quality Control in Privilege ReviewQuality Control     Preventing Errors                    Inconsistent Coding Analysis...
Sampling -- How Many Do I Have to Check? 1. You have a bag with 1 million M&Ms 2. It contains mostly brown M&Ms 3. You can...
How Confident Do You Need to Be?   Does 95% work? How about 99%?   How many errors can you tolerate?     ► One out of a hu...
SamplingQuality Control     Judgmental Sampling – “Fish where you think the                     fish are”                ...
Sample the hits AND the non-hitsQuality Control     Hits                            Judgmental Sampling is OK       Codi...
Pre-Production QCQuality Control                    Rules – Don’t produce docs       Coding         tagged as privileged...
Analytics to QC and Improve QualityQuality Control     Clustering – Cluster the “not privileged” docs                    ...
Protecting Privilege Workflow   Search       Categorize        Review         Quality Control                             ...
Additional Information on Privilege   A Framework for Facilitating Privilege Review   Privilege Logs: How to Create Them...
Trends and Best Practices in E-Discovery Privileged Review Practices and Trends
Trends and Best Practices in E-Discovery Privileged Review Practices and Trends
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Trends and Best Practices in E-Discovery Privileged Review Practices and Trends

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(See the full recording of this webinar here: http://catalystsecure.com/past-events/680-protecting-privileged-documents-jun2012.html)

In recent cases, we have seen many privileged “smoking gun” documents inadvertently produced, and in some of those cases, the court would not allow clawback, even with a clawback agreement. Even if clawback is allowed, the information can still be used in damaging ways. You can’t unring a bell! Mistakes like these can be prevented with the proper knowledge and attention.

This webinar, presented by the Catalyst consulting team. John Hokkanen, Catalyst Director of Search and Analytics, and Senior Consultants Jim Eidelman and Ron Tienzo, explores recent e-discovery trends and best practices regarding privileged documents.

Topics include:

• A very brief overview of recent court decisions regarding attorney-client waiver issues and best ways to use FRE 502.

• Best ways to search for “potentially privileged” documents.

• Using advanced analytics to identify social networking among in-house counsel, outside counsel, management and others to categorize privileged documents.

• Creating a privilege log automatically as you review.

• Best ways to QC for privilege using analytics, sampling, and rule-based software.

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  • Facciola had a personal interest in this as well Self Preservation Opposing sides do not see eye to eye when it comes to Priv Let the Judge Decide Spends the weekend reviewing 60k docs I don’t know if Facciola fishes Don’t go asking him how the trout are biting
  • Law review article published in the Federal Courts Law ReviewNot law but comes from respected names in our fieldREAD TEXTUsing categories to classify Priv“I like this picture because it looks like Giant Facciola is mad at little Facciola”
  • Starts at meet and conferHigh level of judicial involvementDefine categoriesObjective indexing requiredELIMINATE THE BURDEN OF DOCUMENT BY DOCUMENT REVIEW
  • What defines a Privilege Category?Any manner of reasoned organization
  • Priv log not required No contention from opposing party. Either it is or it isn’t Only provide readily available info Read examples
  • Priv log not required No contention from opposing party. Either it is or it isn’t Only provide readily available info Read examples
  • Mt. Hawley Ins. Co. v. Felman Production, Inc. – This case makes taking precautions even more important.
  • Trends and Best Practices in E-Discovery Privileged Review Practices and Trends

    1. 1. Trends and Best Practices inE-Discovery Privilege Review Catalyst Best Practices and Workflow John Hokkanen James Eidelman Ron Tienzo
    2. 2. Speakers John Hokkanen Director of Search & Analytics Consulting jhokkanen@catalystsecure.com James Eidelman Senior Consultant jeidelman@catalystsecure.com Ron Tienzo Senior Consultant rtienzo@catalystsecure.com
    3. 3. “If there is a hell to which disputatious,uncivil, vituperative lawyers go, let it be onein which the damned are eternally locked in discovery disuputes with other lawyers of equally repugnant attributes.” Judge Wayne E. Alley in Krueger v. Perlican Products Corp., (W.D. Okla. 1989).
    4. 4. What is Privileged? Attorney-Client Privilege  Communication between attorney and client  For the purpose of obtaining or providing legal advice  Intended to be kept confidential  Reasonable measures are taken to preserve confidentiality Also Work Product and Joint Defense Documents
    5. 5. Waiving Privilege  CC or Forward to 3rd parties  No expectation of privacy  Produce a privileged document (unless valid claw-back) Subject-Matter Waiver Inadvertent Disclosure
    6. 6. You can’t un-ring a bell!  If there is a smoking gun document, you are screwed, even if you have a valid clawback!!  Examples: -- Mt. Hawley -- Oracle v Google
    7. 7. FRE Rule 502 and FRCP 26(b)(5)  Rule 502(a) Subject matter waiver FRCP 26(b)(5) – Produce what’s not privileged  Rule 502(b) Inadvertent disclosure [T]he disclosure does not operate as a waiver in a Federal or State proceeding if: • You need to produce what is not privileged • Priv log for docs claimed to be privileged (id and basis) • Redaction for partially privileged documents • Inadvertent production – claw back
    8. 8. Rule 502 and FRCP 26(b)(5)  Rule 502(a) Subject matter waiver FRE 502 (b) – Default if no Clawback Agreement  Rule 502(b) Inadvertent disclosure [T]he disclosure does not operate as a waiver in a Federal or State proceeding if: • The disclosure is inadvertent; • The holder of the privilege or protection took reasonable steps to prevent disclosure; and • The holder promptly took reasonable steps to rectify the error
    9. 9. Rule 502 and FRCP 26(b)(5)  Rule 502(a) Subject matter waiver  Rule 502(b)(d) – Court-approved Agreements FRE 502 Inadvertent disclosure The parties may enter into a claw-back agreement approved by the court. If so: • The agreement can reduce the risk (eliminate the hearing on “reasonability” and promptness) • The protection is binding in this case AND other cases, including state court! (Usually stand up, but not always.)
    10. 10. Approved stipulation language from cases:  “[I]nadvertent production of any confidential, privileged, or work product documents shall be without prejudice to any claims that the document is confidential or privileged, and shall constitute neither a waiver of any claim of privilege that may otherwise attach thereto nor a general waiver of such claim or privilege.” Degeer, 2010 WL 3732132  “The production of attorney-client privilege materials, work product protected materials, or trial preparation materials shall not constitute a waiver of those protections. In the event of such protected information, the Parties will follow the procedure set out in Rule 26(b)(5). Morris, 2011 WL 3808544”  502(d) is under-utilized!!!!!
    11. 11. Protecting Privilege Workflow Search Categorize Review Quality Control  Coding Attorney to Validation AttorneyOrganizations Automated Workflow Attorney to Client Email Thread / Near Duplicate Names Attorney to Client + Other Integrated Privilege Log Statistical Legal Terms Creation Sampling Attorney → Vendor
    12. 12. Enhanced Search SearchOrganizations NamesLegal Terms
    13. 13. Enhanced Search Search  Goals of search  Capture 100% of privileged documents  Minimize false positives to speed review and lower costsOrganizations  Approach  Identify documents to/from external lawyers  Identify documents to/from internal legal or Names key personnel  Identify documents that use legal terms commonly associated with privilegedLegal Terms communications
    14. 14. Identifying External Organizations Search 1. Obtain list of firms used by client 2. Develop viable searches based on organization  For some it may be a single nameOrganizations (e.g., Skadden)  For others it may be multiple names (e.g., Smith near/2 Gambrell) 3. Identify external email domains Names  Include prior merged firms  Include variations (bakermckenzie.com, bakernet.com) Legal Terms  Use of domains results in inclusion of documents that may have been sent by clerical staff on behalf of attorneys
    15. 15. Identifying Critical Individuals Search 1. Obtain list of internal and external individuals and their email addresses, including private email addresses 2. Identify risk/success factors. For example: Organizations  Have fully qualified email aliases been exported in email text? (e.g., John.Smith@abcfirm.com vs. Outlook shorthand “John Smith”) Names  Do you have employment dates for individuals where date restrictions can be used?  Do you have critical dates that can also Legal Terms affect your ability to craft searches (e.g., start date of a contract or project)
    16. 16. Identifying Critical Individuals Search 1. Where email aliases known, use them. 2. Where email alias unknown, expand it with common variations (e.g., JBrown, BrownJ, J.Brown, Brown.J, John.Brown, Brown.John, Organizations JohnBrown) 3. Apply employment dates and/or critical dates as appropriate 4. Apply criteria from firm/domain searches to Names minimize results to identify false positives in searches on individuals (e.g., JBrown and not Skadden) Legal Terms
    17. 17. Leveraging Terms Search 1. Develop search list of most commonly used legal terms in privileged communications (e.g., litigation, deposition, privilege, etc.) 2. Develop search list of particularized termsOrganizations relevant to the case (e.g., patent right) 3. Develop search list of general terms that may relate to outside counsel (e.g., attorney, advogados) Names 4. Use advanced tools to expand searches through term discovery (e.g., document vectors)Legal Terms
    18. 18. Privilege Search – Multi-Language Search  Non-romance languages (Japanese, Chinese, Korean) present new issues  Development of termsOrganizations Translation services Suggestions based on document vectors  Custom reporting NamesLegal Terms
    19. 19. Document Categorization Categorize Attorney to Attorney Attorney to Client Attorney toClient + Other Attorney → Vendor
    20. 20. Document Categorization Categorize  Social network analysis  Categorize documents by likelihood of being Attorney to Attorney privileged  Track who sent or created a document and Attorney to Client who received it  Greatly speed up review and increase Attorney toClient + Other accuracy Attorney → Vendor
    21. 21. Privilege Categories Categorize  Targeting potentially privileged documents through author / recipient analysis Attorney to 1. Counsel Attorney 2. Company Employees 3. In-House Counsel Attorney to 4. Opposing Party Client 5. Opposing Counsel 6. Vendors Attorney to 7. Support StaffClient + Other Attorney → Vendor
    22. 22. Privilege Category Example Client / Counsel Communications Counsel Client Opposing Party Opposing Party Communications
    23. 23. Other Categorization Methods Categorize  Search hit (Counsel; Firm Name; Legal Term)  Original folder path / email filter Attorney to Attorney  Client Identified  Custodian Attorney to Client  Predictive Coding Attorney to  ClusteringClient + Other Attorney → Vendor
    24. 24. The Facciola-Redgrave Framework Categorize  Background Attorney to Attorney Attorney to Client Attorney toClient + Other Attorney → Vendor
    25. 25. The Facciola-Redgrave Framework Categorize Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework Attorney to 2009 Fed. Cts. L. Rev. 4 (November, 2009) Attorney “By limiting the documents that must be Attorney to indexed or logged, by using categories to Client organize the information, and by using detailed logs only when necessary, the cost Attorney toClient + Other of claiming and adjudicating privilege claims can be greatly reduced.” Attorney → Vendor
    26. 26. The Facciola-Redgrave Framework Categorize Starts at Rule 26(f) Meet and Confer  High level of Judicial involvement  Define categories of privilege Attorney to Attorney  Objective indexing required “The object should be to efficiently segregate Attorney to Client those documents which are likely to be privileged from the rest, allowing for a more Attorney to nuanced set of alternatives to alleviate theClient + Other burden of a document-by-document review Attorneyall potentially privileged documents.” of → Vendor
    27. 27. Privilege Categories: Facciola-Redgrave Categorize Privilege Category “…identifies documents and ESI which may be excluded from collection or production by Attorney to virtue of the high likelihood that they are not Attorney discoverable due to a privilege or protection.” Attorney to Methods: Client “..any manner of reasoned organization” Attorney toClient + Other Attorney → Vendor
    28. 28. Objective Indexing: Facciola-Redgrave Categorize  Privilege log is not required  “readily available information… to aid the parties in understanding the universe of documents at Attorney to issue” Attorney  Examples:  presumptive authors Attorney to Client  recipients  dates  bates numbers Attorney toClient + Other  file size Attorney → Vendor
    29. 29. Privilege Review Review Automated Workflow Integrated Privilege Log Creation
    30. 30. Privilege Review Review  Automated rule based workflow to route documents to your privilege review team  Rule categories  Privilege Coding Automated  Primary Language Workflow  Redaction Status  Flexible enough for documents to be re-routed up the workflow  Eliminates errors that could be made by manual searching and batching Integrated Privilege Log  Plan on how to handle families, duplicates, Creation threads, etc…
    31. 31. Privilege Review Review  Although the contents of a log may vary, as a general overview, we recommend the log contain the following information for each entry: Automated • Type of document Workflow • Name of the document author • Names of the document recipients • Document date Normalize and Export From Database • The privilege claimed Integrated • Description of the document Privilege Log User Created Information Creation
    32. 32. Privilege Review Review Privilege log generator integrated into customizable review form  Standard coding fields Automated Responsive, Privilege, Redaction, Comment Workflow  Normalized and automatically populated metadata  Duplicate metadata to new fields to avoid altering original data Integrated Privilege Log Creation  Sentence starters to ensure consistency and speed up log creation
    33. 33. Privilege Review Review  Use sentence starters to ensure consistency and speed up log creation Privilege Type o Attorney Client Automated o Attorney Work Product Workflow Privilege Starter o 1-Communication soliciting and/or providing legal advice o 2-Communication for the purpose of providing legal advice o 3-Communication for the purpose of obtaining legal advice Privilege Description Integrated 2-Confidential communication from counsel requesting Privilege Log information for the purpose of providing legal advice Creation regarding 2012 first quarter sales figures.
    34. 34. Suggested Practices for Documenting Privilege Review  Review each document (post initial Quality Control).  Use counsel list as guide.  Careful assessment of attorney in non-legal Automated setting. Workflow  Use all available resources to determine authors / recipients.  Seek approval with client & counsel to build consensus.  If questionable, err on side of privilege for first Integrated pass. Privilege Log Creation
    35. 35. Production Quality ControlQuality Control  Coding Validation Email Thread / Near Duplicate Statistical Sampling
    36. 36. Quality Control in Privilege ReviewQuality Control  Preventing Errors  Inconsistent Coding Analysis (Families, Threads, Near Dupes, Clusters)  Coding Validation  Judgmental Sampling  Statistical Sampling  Analytics (Clustering, Predictive Coding) Email Thread /  Document the Process Near Duplicate Statistical Sampling
    37. 37. Sampling -- How Many Do I Have to Check? 1. You have a bag with 1 million M&Ms 2. It contains mostly brown M&Ms 3. You cannot see into the bag 4. You have a scoop that will pull out 100 M&Ms at a time 5. Your hope is that there are no red M&Ms in the bag 6. You pull out a scoop and they are all brown How many scoops do you need to review to be confident there are no red M&Ms?
    38. 38. How Confident Do You Need to Be? Does 95% work? How about 99%? How many errors can you tolerate? ► One out of a hundred? ► 10,000 errors or 1 % At a 95% confidence level and 1 percent error rate : 399 M&Ms At a 99% confidence level and 1 percent error rate: 459 M&Ms At a 100% confidence level and 1 percent error rate: 1157 M&Ms
    39. 39. SamplingQuality Control  Judgmental Sampling – “Fish where you think the fish are”  Simple Random Samples  Coding Validation  Statistically valid random samples (you can extrapolate from the sample) Email Thread / Webinar: Statistical Sampling in E-Discovery -- Best Near Duplicate Practices for Best Results Statistical Sampling
    40. 40. Sample the hits AND the non-hitsQuality Control  Hits Judgmental Sampling is OK  Coding Have good reasons for modifications Validation Document the changes  Non-hits Email Thread / Near Duplicate Statistically Valid Sample 95% confidence, reasonable (4%?) margin of error Statistical http://www.raosoft.com/samplesize.html Sampling  Keep a “Defensibility Log”
    41. 41. Pre-Production QCQuality Control  Rules – Don’t produce docs  Coding tagged as privileged! Validation  Sample in-house counsel docs tagged as “not privileged”  Sample “potentially privileged” terms against Email Thread / production Near Duplicate  Inconsistent coding (families, near dupes, email threads)  Random Sample for Privilege (Mt. Hawley) Statistical Sampling  Discover errors prior to production  Sample non-indexed documents
    42. 42. Analytics to QC and Improve QualityQuality Control  Clustering – Cluster the “not privileged” docs using privileged docs as seeds  Key Document Clustering  Coding Validation  Topical Clustering  Predictive Coding Email Thread / Near Duplicate Statistical Sampling
    43. 43. Protecting Privilege Workflow Search Categorize Review Quality Control  Coding Attorney to Validation AttorneyOrganizations Automated Workflow Attorney to Client Email Thread / Near Duplicate Names Attorney to Client + Other Integrated Privilege Log Statistical Legal Terms Creation Sampling Attorney → Vendor
    44. 44. Additional Information on Privilege  A Framework for Facilitating Privilege Review  Privilege Logs: How to Create Them, and How to Avoid Them  Best Practices to Protect Privileged Documents  Case Study: Protecting Privileged Documents in a DOJ Investigation

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