No, You Don’t Have to Read Everything

man-852766_1280I have met lawyers who have a crazy idea: They HAVE to read EVERY email, document, Excel file, video, and every other bit of ESI produced in discovery.

That position is wrong. Lawyers have a duty of competency to their client, and candor to the court, to look at what is relevant to their case and responsive to discovery requests. This can be accomplished using one of the many eDiscovery review applications, leveraging search terms, advanced analytics, time lines, predictive coding, and knowing the scope of discovery.

This issue was highlighted in a criminal case where the government produced over 1.9 million pages of discovery, plus 49 audio recordings, and two videos. United States v. Pomrenke, 2015 U.S. Dist. LEXIS 165287, *1. Defense counsel sought a six-month continuance.

They got a six-week one instead.

Defense counsel argued that they had an ethical obligation to “review every document produced by the government to determine its relevance or lack thereof.” Their estimated time for three lawyers working around the clock would take more than a year to complete. Pomrenke, at *4.

The Court did not buy the argument. Judge James P. Jones stated:

I believe that many of the produced documents can be reviewed very quickly. Counsel for the defendants can use e-discovery software to aid in their review and can enlist the assistance of additional attorneys if necessary. In addition to the three attorneys of record, the defense team also includes an investigator. Moreover, the defendant’s husband is legally trained. Although he is not counsel of record in this case, I previously affirmed an order of the magistrate judge allowing the defendant to disclose the discovery materials to her husband, anticipating that he would assist with trial preparation.

Pomrenke, at *5.

The Court granted a six-week continuance, which was “adequate time for the defense to prepare for trial while still serving the interest of the public and the defendant in having this case promptly concluded.” Pomrenke, at *5-6.

Bow Tie Thoughts

Relevancy review does not require eyes on every document. Determining the case story lawyers want to tell the jury focuses review to find that information. Moreover, jury instructions are highly effective in structuring document review to find what is relevant.

Attorneys can focus the scope of discovery to the key players in the case. From there, searches can be further refined based on time frames, and subject matter to search for in the database.

“Predictive Coding” is also extremely effective in such cases. While different software applications vary, the general theme is the software learns from review to identify what is relevant and what is irrelevant.

One way to help train Predictive Coding on what is irrelevant, is to search for substantive information not relevant to the case. For example, if you have a construction defect case and every project the contractor worked on was added to the database (overly broad collections happen and not everyone removes such data in processing), code the irrelevant projects as such (and ultimately have them removed from the database to reduce costs). Other methods are to search and tag emails from newsletters and advertisements as irrelevant. There are other methods as well to help identify irrelevant information, so these are just examples.

Conducting faceted searches layered with data identified from Predictive Coding is also a very effective way to zero in on responsive information. Searches are run over the possibly relevant information, thus any review is focused and helps train the system for what could be relevant to the case.

There are many ways to identify relevant electronically stored information that further Federal Rule of Civil Procedure Rule 1 and proportionality. None of these methods should require a brute force manual review of each individual record, because no one should have to spend years on document review.

A Case Study on Privilege Logs

Privilege logs require more than merely saying a prospectively privileged document is an “attorney-client communication.” This requires litigants to conduct privilege review with far more analysis than simply tagging discovery “Attorney Client Privilege” or “Work Product Conduct.” The case of United States v. State & La. Dep’t of Health & Hospitals highlights the importance of effective discovery review in creating privilege logs.

The Defendant produced a 2,941 PAGE privilege log that claimed the discovery was protected by the attorney-client privilege and/or the work product doctrine. United States v. Louisiana, 2015 U.S. Dist. LEXIS 100238, *3 (M.D. La. July 31, 2015).

Following in the wake of a nearly 3,000 page privilege log came a motion by the Plaintiff to compel a “Proper Privilege Log,” which was answered with a new privilege log of only 2,302 pages, plus a new 259 page privilege log. US v. Louisiana, *3-4.

Before discussing any privilege review, it is important to define the privileges in a case. As the Court explained, “[t]he attorney client privilege generally protects confidential communications made by a client to his lawyer for the purpose of obtaining legal advice. The work product doctrine protects materials prepared in anticipation of litigation that reveal the “mental impressions, conclusions, opinions, or legal theories of an attorney.” Id, at *14, citing Hodges, Grant & Kaufmann v. United States Gov’t, 768 F.2d 719, 720-21 (5th Cir. 1985) and Conoco Inc. v. Boh Bros. Construction Co., 191 F.R.D. 107, 118 (W.D. La. 1998).

The Plaintiff challenged the privilege log as being “insufficiently specific,” citing examples that privileged claims were simply “NVRA” or “NVRA Spreadsheet,” “Voter Registration Form,” “Final NVRA-2013,” “NVRA Documents.” The NVRA is an acronym that the Defendant had to follow. Needless to say, the Court agreed these claimed privileges were insufficient. Id., at *9-10.

Rule 26(b)(5) of the Federal Rules of Civil Procedure requires a privilege log to: “(i) expressly make the claim” of privilege; and “(ii) describe the nature” of the withheld information in a way that “will enable other parties to assess the claim.” The test for determining whether a privilege log is adequate is whether each entry states sufficient facts that establish each element of the privilege. This requires a specific description of why something is privileged, not a “conclusory invocations of the privilege or work-product rule.” Id., *6-7. Simply put, lawyers cannot say, “work product doctrine” like they are magic words to ward off opposing counsel.

The privilege log also lacked detail with the identities and roles of each sender and recipient. Id., *11. As such, there was no way for the Plaintiff to determine whether the claimed privileged information was actually covered by the privilege. Simply put, you need to state that a attorney-client communication is actually with an attorney either seeking or receiving legal advice.

The Court’s in-camera review of 40 claimed privileged documents showed serious problems with the privilege log, because there were communications not with any attorneys, emails regarding scheduling of training, reports with factual information, messages on compliance procedures, and apparently unrelated email. Id., at *13-14.

The Court held that many of the sampled documents did not fall under the attorney-client privilege or work-product doctrine, because the communications were internal communications. Many of the communications did not involve any lawyers, did not suggest an attorney-client relationship, and were not seeking legal advice. Moreover, the messages did not contain mental impressions of any lawyers. Id., at *15-18.

Bow Tie Thoughts

Privilege review cannot be haphazard. The litigation team should define the possible privileges in the case, whether there are spouses texting each other or someone emailing their pastor for spiritual advice. This further requires setting up the document review issue coding, so information is properly identified, tagged, and defined in a way to “enable other parties to assess the claim” under Federal Rule of Civil Procedure Rule 26(b)(5).

There are several ways to set up issue coding where a party can “(i) expressly make the claim” of privilege; and “(ii) describe the nature” that “will enable other parties to assess the claim” under Federal Rule of Civil Procedure Rule 26(b)(5). For example, let’s code for the attorney-client privilege. While state laws vary, the attorney client privilege requires at least an email between a client and lawyer, with the client seeking legal advice, or the lawyer providing legal advice. Coding could be set up as follows: Attorney Client Communications, with sub-issues, “Communication from Client to Lawyer Seeking Legal Advice, or “Communication from Lawyer to Client Providing Legal Advice.”

These tags would give detail to the privilege log, but still more is required. An additional free text note field would need to be added that could contain “sufficient facts that establish each element of the privilege.” A review team would need to decide at what stage of review they want reviewers adding such detail to the database. Some might find it is advantageous to have lawyers go into such detail while conducting their initial review, others might elect to have a privilege review team review everything tagged as privilege to provide sufficient facts in the notes to explain the claimed privilege.

The privilege log can be exported from most litigation support databases in Excel. The privilege log should include fields such as the Production Number (or Bates), Email From, Email To, Subject, Date Sent, Date Received, and any other relevant field, minus the body of the message. This information should provide both the requesting party and the Court enough information to evaluate whether the claimed privilege applies to the withheld discovery.

There are multiple ways to build a privilege log in a discovery review application. However, whichever method you select, think it through with the requirements for privilege logs and the privileges in mind.

The Advantages of Contacting Opposing Counsel 34 Minutes After Inadvertent Disclosure of One Email

Ahhhhhhh!!What happens when a lawyer inadvertently produces an email protected by the attorney-client privilege? A Magistrate Judges and District Court Judge orders the receiving party to destroy the inadvertently produced email.

Iowa is the home of where John Atanasoff invented the first computer in 1939. It is also the home of Federal Judges who conduct excellent legal analysis of whether an inadvertent production waives the attorney-client privilege over an email.

Defense counsel inadvertently produced a privileged email and once learning of the production, called Plaintiff counsel within 34 minutes. Pick v. City of Remsen, 2014 U.S. Dist. LEXIS 128411, at *2-4, 11 (N.D. Iowa Sept. 15, 2014).

The Plaintiff refused to destroy the email and instead offered to redact the attorney-client advice.

The Court applied the following test for determining whether a privilege had been waived:

(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production,

(2) The number of inadvertent disclosures,

(3) The extent of the disclosures,

(4) The promptness of measures taken to rectify the disclosure, and

(5) Whether the overriding interest of justice would be served by relieving the party of its error.

Pick at *7-8, citing Gray v. Bicknell, 86 F.3d 1472, 1484 (8th Cir. 1996), (citing Hydraflow, Inc. v. Enidine Inc., 145 F.R.D. 626, 637 (W.D.N.Y. 1993)).

The Court spent the most time analyzing the reasonableness of the precautions Defense counsel undertook to preserve the confidentiality of the email message. The Court quickly dismissed the argument it was unreasonable to not include a privilege log, since the attorney did not find any privileged emails in his review. Pick at *8.

The inadvertently produced email was “inconspicuously located among various non-privileged email messages.” Pick at *7-8.

The Court summarized that the defendants provided their attorney with 440 pages of documents. This included 183 email messages, with some pages containing more than one email. Id.

The suspect email was under a non-privileged email and started in the middle of a page that ran onto the next page. There was no marking that the email was privileged. Moreover, the printed email had no borders defining where one email began and the other began. Id. 

The other factors were quickly decided in favor of the producing party, given that this was only a single message and it took less than an hour for the attorney to catch the inadvertent production. Pick at *9-12.

The Court held the email contained “classic legal advice that should be protected by the attorney-client privilege” and ordered the receiving party to destroy the inadvertently produced email.

Bow Tie Thoughts

The Court made the right decision in this case. However, part of the reason the production happened was because the production was on paper (based on the content of the opinion). If the discovery had been reviewed in a review application, there is a high chance the confidential message would have been found during review.

Reviewing discovery as “paper” requires reading each and every email. When email is maintained in its native format, it can be searched based on keywords, dates, senders, and other objective information. Moreover, leveraging advanced analytics or predictive coding, the producing party can identify not just responsive information, but privileged as well.

Code-ReviewThere is also the very direct approach for determining whether there are emails that could be protected by the attorney-client privilege: search for any emails to or from a lawyer. Determine whether the email is providing legal advice or if a client is requesting legal advice. If these conditions are met, the attorney-client privilege could apply.

There are many types of privileges, from spousal, to clergy, to tax, and medical advice. The first step in privilege review is determining which privileges apply to your case. It is also wise to determine if your case contains confidential information, such as medical records or personal identifiable information.

Once the privileges and confidential information is determined, the review team can set-up the appropriate issue coding. It is important to know that Judges want to see more than an email is “attorney-client privilege.” The issue coding can have sub-issues, such as “Email from Client Requesting Legal Advice” or “Email to Client Providing Legal Advice.” Depending on the needs of the case, a lawyer might need to include more information to comply with the rules for creating a privilege log.

After document review is completed, a lawyer can search for all privilege information. Based on these results, a privilege log can be created by exporting the necessary objective coding and subjective issue coding to an Excel spreadsheet for production to the requesting party.

18 Missing Email Messages is not like 18 Minutes of Missing Watergate Tape

Vintage Reel-to-Reel Tape PlayerRosemary Woods was not involved in this document production.

In motion practice over the adequacy of a production, the Plaintiffs were able to show that the Producing Party did not produce 18 email messages that were produced by a third-party.

As such, the Plaintiff sought production of search efficiency reports that was conducted as an audit and investigation by two law firms for the Producing Party. The goal was to identify the missing discovery from the production, opposed to the specifics of the Producing Party’s discovery efforts. Freedman v. Weatherford Int’l, 2014 U.S. Dist. LEXIS 133950, at *7-8 (S.D.N.Y.Sept. 12, 2014).

Judge Francis stated that “suggested remedy is not suited to the task,” because only three of the eighteen email messages would have been identified by the search terms used in the audit investigation. Freedman, at *8.

EmailAtSybolsThe Plaintiff’s argument focused on that the information produced by third-parties should have been produced by the Producing Party, opposed to whether the requested searches would have identified the missing information. Freedman, at *9. According to the Defendants, only one unproduced document would have been identified from the requested searches. Id.

The Producing Party had reviewed “millions of documents” and produced “hundreds of thousands” of documents that totaled nearly 4.4 million pages. Citing to the “proportionality rule” from the Federal Rules of Civil Procedure, the Court invoked the maxim the Rules “do not require perfection.” Freedman, at *9, citing Moore v. Publicis Groupe, 287 F.R.D. 182, 191 (S.D.N.Y. 2012).

The Court stated it was “unsurprising that some relevant documents may have fallen through the cracks;” however, the remedy sought would unlikely cure any production defects. As such, the Court denied the production of the search report. Freedman, at *9-10.

Bow Tie Thoughts

Judge Francis’ opinion puts very proportional view of challenging production adequacy: you first have to demonstrate a production is inadequate and then demonstrate the remedy makes sense. Proving three email messages were missing out of thousands does not justify conducting searches that would not produce any missing information. The remedy has to be proportional to problem.

Proportionality is a balancing of interests. Do 18 missing emails out of thousands justify new searches? Well, if those 18 emails were the key smoking gun messages, maybe. Ask Rosemary Woods or Lois Lerner about missing information.

The message I take away from Judge Francis’ opinion, is that if you have emails from a third-party that show a production deficiency, you have to offer a proportional remedy. If the offer is for additional searches that would only produce one or two of the missing emails, that is not a proportional remedy. Alternatively, if you proffer search terms that would have generated “hits” on 17 out of 18, maybe that would tip the scales in favor of running additional searches. At the end of the day, the effort sought has to have value to the case and not be an experiment in futility.

Guest Post on Everlaw: Is An Attorney Responsible for Manually Reviewing Discovery Before Production?

Review-TeamI prepared a guest post for Everlaw’s blog on an attorney’s ethical duty to follow a client’s instruction to manually review documents prior to production.

Is expert testimony required to show a lawyer breached their standard of care or is this issue one a jury can decide on their own?

Check out the case summary and tips on document review at Everlaw:

What is an attorney’s Duty of Loyalty to review discovery documents before producing them to an opposing party? That issue recently arose in a summary judgment battle between a client and his former attorneys.

The Case:

The client claimed that the law firm had committed malpractice because the attorneys failed to review discovery responses before production to the opposing party – after being directed to do so by their client. Things really went wrong when the client was hit with sanctions, and the law firm denied knowledge of certain documents in court. Price Waicukauski & Riley v. Murray, 2014 U.S. Dist. LEXIS 130680 (S.D. Ind.Sept. 18, 2014).

 Continue reading at Is An Attorney Responsible for Manually Reviewing Documents?

How Not to Be Progressive: Court Rejects Predictive Coding Not Agreed to By Parties

RichardNixonStampFighting over discovery search methodology makes me think of President Richard Nixon’s resignation speech: “Always remember, there are those who hate you. And the only way to keep them from winning is to hate them right back. And then you destroy yourself.”

Attacking a party who used predictive coding to reduce discovery review time to save money and time, only to result in a larger collection of ESI produced upon the requesting party, means the requesting party now has more to review. This is the end result of Progressive Cas. Ins. Co. v. Delaney.   

I have never been a fan of agreeing to the use of predictive coding in ESI Protocols. I do not believe such agreements are required at all by the Federal Rules of Civil Procedure. The issue is whether or not a production is adequate. That requires the requesting party offering evidence that the production is somehow delinquent with facts. That discussion does not happen without first having a production.

Parties do not have a veto power over which review application is used by a reviewing party and what features they may or may not use.  The requesting party should not attack a review methodology, unless there is a production to challenge. The entire discussion is premature and the issue is not ripe for the Court.

In the case at bar, the original dataset was narrowed by search terms to 565,000 “hits” from the original 1.8 million dataset. This search term methodology had been agreed to in an ESI Protocol by the parties. After one month of document review, the producing party realized that it could take 6 to 8 months to manually review the narrowed dataset for responsiveness or privilege. The party unilaterally decided to use predictive coding instead. Moreover, after telling the other side about their change in technology, motion practice followed. Progressive Cas. Ins. Co. v. Delaney, 2014 U.S. Dist. LEXIS 69166.

The Requesting Party wanted the Producing Party to 1) produce the 565,000 culled from the 1.8 million data set using the parties’ agreed-upon search terms subject to a clawback for privileged documents, or 2) the Producing Party apply the predictive coding methodology to the entire 1.8 million record dataset. Progressive, at *12 and *15.

The Producing Party did not want to do either approach, specifically concerned that searching the entire dataset would result in a larger privilege review.

The Court noted what has been judge-made law on using technology assisted review: Courts require the producing party to provide the requesting party with “full disclosure about the technology used, the process, and the methodology, including the documents used to “train” the computer.” Progressive, at *27-28, citing Da Silva Moore 2012 U.S. Dist. LEXIS 23550 (S.D.N.Y. Feb. 24, 2012).

The Court ordered the producing party to follow the original agreed to protocol and produce the “hit” documents to the Requesting Party within fourteen days without further review. Progressive, at *30.

The Court stated that following the Requesting Party’s protocol, the cost of review would be shifted to them. Progressive, at *31. Moreover, the Requesting Party believed they had the manpower to complete the review within one month. Id. 

The Requesting Party could apply privilege filters before production and produce a privilege log. Id. 

Bow Tie Thoughts

I do not encourage clients to have ESI Protocols that limit their ability to review discovery efficiently. I also strongly argue against the idea you need approval from the opposing party on what search methodology you can use to identify responsive discovery. It is the producing party’s right to use keywords, concept search, visual analytics, email threading, clustering, find similar, or any other form of technology-assisted review. That includes predictive coding. The requesting party does not get a veto power over what technology the producing party can use. The requesting party has “the burden of proving that a discovery response is inadequate.” Abt v. Jewell, 2014 U.S. Dist. LEXIS 50766, 12-14 (D.D.C. Apr. 11, 2014), citing Barnes v. D.C., 289 F.R.D. 1, 6 (D.D.C. 2012) and Equal Rights Ctr. v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007).

You cannot prove a discovery response is inadequate if you do not have a discovery response. The entire idea of attacking the use of predictive coding is premature if there is no production to be reviewed.

The ugly wrinkle in this case is the search and production methodology mandated in the ESI Protocol agreed to by the parties. I strongly encourage parties to not agree to actual technological steps to be used, because it limits the ability to conduct discovery in a cost effective manner. These agreements are often enacted without the advice of an eDiscovery Consultant who knows how the actual technology works.

What parties should discuss and codify in an ESI Protocol is the subject matter of the lawsuit. Who are the key players? What are the relevant date ranges? What are the terms of art used by the parties? What is the data actually making up the case? Those, and many others, are the topics parties need to agree to, not whether you can use visual analytics to identify date ranges or data clustering to determine what was relevant.

The use of predictive coding has been twisted because lawyers think they need permission to use it. They do not. The burden is on the opposing side to prove a production was inadequate, not the fact the producing party used one form of technology-assisted review over another.

 

Triangulating Discovery Productions

Judge William Orrick summed up a basic truth of eDiscovery: In the age of electronically-stored information (“ESI”), production of all relevant, not privileged and reasonably accessible documents in a company’s custody and control is easier said than done. Banas v. Volcano Corp., 2013 U.S. Dist. LEXIS 144139, at *5 (N.D. Cal. Oct. 4, 2013).

ChartDividersThe Defendant in Banas had produced 225,000 documents in a rolling production through “triangulation.”

This methodology involved selecting subsets of employees likely to have relevant information, those who sent or received information, those who could have been involved in the case and those “most likely” to have relevant information. Banas at *4.

The Court stated this approach could have been reasonable, but two problems emerged: 1) The methodology was never discussed or agreed to with the Plaintiff; and 2) Multiple deponents did not have their email searched prior to their depositions. Banas at *4-5.

The Plaintiff also had a hard drive that contained ESI that was not produced by the Defendant. Id. 

The Court ordered the supplement search and production of ESI from the deponents whose ESI had not been searched. Banas at *6.

The Court stated that the Defendant’s search methodology was not unreasonable or designed to conceal information. Banas at *7. However, as the production was conducted on a rolling basis, the Plaintiff could not have been immediately aware of any production gaps. Banas at *6.

As such, supplemental discovery was reasonable.

The Court also highlighted the Northern District of California’s model order requiring parties to meet and confer over the search of ESI prior to responding to a discovery request. This is one of the first opinions to reference the model order. Following the model order is highly advisable for anyone in the Northern District of California. It also has very good best practices for any attorney to consider in a case with electronically stored information.

Bow Tie Thoughts

Identifying relevant custodians and their electronically stored information requires using technology and strategy. Many can feel like it is trying to find a teardrop in the ocean.  

Analyzing communication patterns, clustering email based on domain names or conducting searches based on date ranges and subject matter are just a handful of ways to identifying ESI that could support a parties claims or defenses. Running searches based on discovery requests is another.

I recently had a product demonstration of Kroll Ontrack’s eDiscovery.com Review. Below you can see the features of this product can help search for responsive ESI.

Banas v. Volcano Corp., also has a very important message about the meet and confer process. Parties really should discuss what information is subject to the lawsuit, relevant custodians and search methodologies. While I do not agree with the idea of discussing what tools parties should use, because it can cause unnecessary fighting, agreeing on how ESI will be identified certainly does not hurt between educated attorneys.