New Trends for Managing Privilege In e-Discovery

As any corporation or law firm will attest, the cost of litigation continues to rise and with it the need to identify efficient solutions while maintaining transparency and defensibility. Document review, specifically, has long burdened litigation budgets; however, recent trends in the acceptance of technology integration and more advanced managed review workflows is taking root in the legal landscape. Litigation teams have been tasked with striking the right balance between identifying creative solutions to reduce these budgetary concerns while delivering high quality and defensible work product.

Federal Rule 26(b)(5) governs privilege disclosure during the discovery process by allowing the claiming party to withhold privileged information so long as: 1) a claim is expressly made; and 2) the nature of the documents are disclosed in a manner such that the adverse party is able to assess claims for privilege without being provided access to the underlying sensitive information. This mechanism is commonly referred to as a privilege log. Traditional privilege logs can generally be defined as a log of responsive data to be withheld on the grounds of privilege where the following information is provided: custodian, recipient list, communication date, subject and a privilege description/assertion.

Below we will touch on the burdens of traditional privilege logs and also alternatives to consider.

Traditionally, one of the preferred methods in reducing costs has been to focus on the standardization of the privilege logging process to allay inherent inefficiencies; however traditional logs are burdensome in many ways including, but not limited to: 1) the time required in performing a privilege analysis; 2) structuring of the actual log; and 3) its impact on the overall e-discovery budget. The privilege analysis required in deciding whether communications should be withheld, redacted or produced is cumbersome and involves the balancing of several factors (e.g., potential waiver, agency relationships, fact vs. opinion work product, etc.).

The ability to communicate and balance these variables between clients, outside counsel and e-discovery partners can create a legal quagmire, particularly when dealing with complex litigation where nuances tend to be the rule rather than the exception. Traditional privilege logs also require the balancing of how much standardization should go into the actual log ' too much standardization and the court may deem it too mechanical and find you in non-compliance with Rule 26; too custom and you run the risk of spending more of your litigation budget on the privilege log review than the actual relevance review.

Other Alternatives

Starting with a couple of important assumptions, there are alternatives. Assuming first that all stakeholders in a matter agree and second that court rulings are supportive, there are a few alternatives to consider:

• Metadata Disclosure Only;
• Search Term Based Categorization; and
• Review Based Categorization.

Disclosing metadata fields only is unlikely to be a fruitful option particularly in complex or contentious litigation as there is generally no substantive descriptor provided. e-Mail subject lines can disclose too much or too little of the content of a communication. Search-term based categorization would categorize and consolidate communication types based on carefully crafted search terms. This method tends to be fraught with indefensibility as a document may hit on the categorization term but in review may not be the reason a document should be withheld.

Review-Based Category Privilege Logs

Review-based categorization may be the most defensible of the alternatives. Where a traditional privilege log creates a separate entry for each document family to be withheld, a category privilege log would provide for a single entry for all documents containing a similar theme or category. This would significantly speed up the privilege review and logging process. For example, where the subject matter is complex mortgage litigation; we would anticipate a high volume of privileged documents to fall into the category “communications with counsel regarding HUD litigation impact and liability.” This category could be created and flagged during the workflow to reduce the amount of logging required. This exercise could be repeated for other anticipated categories and supplemented with more a custom descriptor where needed. Review based category privilege logging is a defensible alternative where the client is dealing with a complex litigation or government investigation requiring the review of several hundred thousand/millions of documents and also where the subject matter is such that categorization is easily designated.

How Technology Can Help

Combining technology with e-discovery experts can help your team create efficient workflows which can further reduce cost and time spent on creating a category privilege log. With larger data sets, advanced analytics and document management tools can improve accuracy and reduce the volume requiring attorney review. A few such efficiencies include:

• Advanced Search Utilization. This technique is used to identify project critical information such as privileged content, names or terms for document review organization, assignment batching and quality control.
• Domain Parsing. Another effective approach to efficiently identify privileged content. This tool is used for domain analysis and can examine email metadata in the “To,” “From,” and “CC” fields to identify email domains that could present an issue to the privilege claim.
• Term Highlighting. Agreed upon categories of potentially relevant or potentially privileged terms or phrases may be highlighted in colors corresponding to the category. This visual approach of identifying important themes and categories enables reviewers to quickly find the important phrases within large documents.
• Custom Applications. Based on the knowledge base and resources available, custom applications may be leveraged to concatenate privilege log fields and clean up metadata (e.g., sender or recipient standardization).
• Code Propagation. More advanced e-discovery programs have the capability to identify duplicate documents or near-duplicate documents. When the first document is coded for responsiveness or privilege, the remaining duplicate and near-duplicate documents can be automatically coded with the same tags. This reduces redundant review, increases consistency and greatly reduces the time and cost spent on review.

These technological efficiencies will assist the attorney reviewer to be much more productive while mitigating exposure to risk. Your team's subject matter expertise working in concert with e-discovery experts and technology will allow you to maximize process optimization and reduce your costs or pass along cost savings to the end client.

Other Market Trends

There are bigger picture considerations and trends, which impact not only the privilege review and logging process, but e-discovery as a whole including:

• Flexible engagement models can help position your litigation team to take advantage of lower cost markets globally and under cost structures, which may be more beneficial to your case load.
• Your team's openness to the various levels of integration can have a compounding impact on review efficiencies and litigation budgets. The ability to strike the right balance between risk, benefits and governing case law should be strongly considered during this evaluation.
• Developing expert workflows is an ongoing trend which should take into account several variables including: technology, subject matter, your business units, key players, historical data trends and priorities of the case team.

Ultimately, courts are finding that considering cost efficient alternatives to an unduly burdensome process serves the interest of all. By considering the pros and cons of utilizing the category privilege log alternative, you will be able to: 1) significantly reduce your review spend through efficiently identifying privilege; and 2) greatly decrease e-discovery hours billed to your end client which may be better focused on pre-trial prep, fact development and other case work.

Ali Waheed is Director of Client Services, Knowledge Solutions for DTI. Leveraging a decade of business development and legal experience with Fortune 500 and AmLaw 100 clients. Disclaimer: DTI does not engage in the practice law as we work at the direction of Client and Counsel. The alternatives provided for above should be weighed against recent court rulings and signed-off on by your Outside Counsel. The admissibility and adequacy of deliverables must be assessed on a case-by-case basis.

As any corporation or law firm will attest, the cost of litigation continues to rise and with it the need to identify efficient solutions while maintaining transparency and defensibility. Document review, specifically, has long burdened litigation budgets; however, recent trends in the acceptance of technology integration and more advanced managed review workflows is taking root in the legal landscape. Litigation teams have been tasked with striking the right balance between identifying creative solutions to reduce these budgetary concerns while delivering high quality and defensible work product.

Federal Rule 26(b)(5) governs privilege disclosure during the discovery process by allowing the claiming party to withhold privileged information so long as: 1) a claim is expressly made; and 2) the nature of the documents are disclosed in a manner such that the adverse party is able to assess claims for privilege without being provided access to the underlying sensitive information. This mechanism is commonly referred to as a privilege log. Traditional privilege logs can generally be defined as a log of responsive data to be withheld on the grounds of privilege where the following information is provided: custodian, recipient list, communication date, subject and a privilege description/assertion.

Below we will touch on the burdens of traditional privilege logs and also alternatives to consider.

Traditionally, one of the preferred methods in reducing costs has been to focus on the standardization of the privilege logging process to allay inherent inefficiencies; however traditional logs are burdensome in many ways including, but not limited to: 1) the time required in performing a privilege analysis; 2) structuring of the actual log; and 3) its impact on the overall e-discovery budget. The privilege analysis required in deciding whether communications should be withheld, redacted or produced is cumbersome and involves the balancing of several factors (e.g., potential waiver, agency relationships, fact vs. opinion work product, etc.).

The ability to communicate and balance these variables between clients, outside counsel and e-discovery partners can create a legal quagmire, particularly when dealing with complex litigation where nuances tend to be the rule rather than the exception. Traditional privilege logs also require the balancing of how much standardization should go into the actual log ' too much standardization and the court may deem it too mechanical and find you in non-compliance with Rule 26; too custom and you run the risk of spending more of your litigation budget on the privilege log review than the actual relevance review.

Other Alternatives

Starting with a couple of important assumptions, there are alternatives. Assuming first that all stakeholders in a matter agree and second that court rulings are supportive, there are a few alternatives to consider:

• Metadata Disclosure Only;
• Search Term Based Categorization; and
• Review Based Categorization.

Disclosing metadata fields only is unlikely to be a fruitful option particularly in complex or contentious litigation as there is generally no substantive descriptor provided. e-Mail subject lines can disclose too much or too little of the content of a communication. Search-term based categorization would categorize and consolidate communication types based on carefully crafted search terms. This method tends to be fraught with indefensibility as a document may hit on the categorization term but in review may not be the reason a document should be withheld.

Review-Based Category Privilege Logs

Review-based categorization may be the most defensible of the alternatives. Where a traditional privilege log creates a separate entry for each document family to be withheld, a category privilege log would provide for a single entry for all documents containing a similar theme or category. This would significantly speed up the privilege review and logging process. For example, where the subject matter is complex mortgage litigation; we would anticipate a high volume of privileged documents to fall into the category “communications with counsel regarding HUD litigation impact and liability.” This category could be created and flagged during the workflow to reduce the amount of logging required. This exercise could be repeated for other anticipated categories and supplemented with more a custom descriptor where needed. Review based category privilege logging is a defensible alternative where the client is dealing with a complex litigation or government investigation requiring the review of several hundred thousand/millions of documents and also where the subject matter is such that categorization is easily designated.

How Technology Can Help

Combining technology with e-discovery experts can help your team create efficient workflows which can further reduce cost and time spent on creating a category privilege log. With larger data sets, advanced analytics and document management tools can improve accuracy and reduce the volume requiring attorney review. A few such efficiencies include:

• Advanced Search Utilization. This technique is used to identify project critical information such as privileged content, names or terms for document review organization, assignment batching and quality control.
• Domain Parsing. Another effective approach to efficiently identify privileged content. This tool is used for domain analysis and can examine email metadata in the “To,” “From,” and “CC” fields to identify email domains that could present an issue to the privilege claim.
• Term Highlighting. Agreed upon categories of potentially relevant or potentially privileged terms or phrases may be highlighted in colors corresponding to the category. This visual approach of identifying important themes and categories enables reviewers to quickly find the important phrases within large documents.
• Custom Applications. Based on the knowledge base and resources available, custom applications may be leveraged to concatenate privilege log fields and clean up metadata (e.g., sender or recipient standardization).
• Code Propagation. More advanced e-discovery programs have the capability to identify duplicate documents or near-duplicate documents. When the first document is coded for responsiveness or privilege, the remaining duplicate and near-duplicate documents can be automatically coded with the same tags. This reduces redundant review, increases consistency and greatly reduces the time and cost spent on review.

These technological efficiencies will assist the attorney reviewer to be much more productive while mitigating exposure to risk. Your team's subject matter expertise working in concert with e-discovery experts and technology will allow you to maximize process optimization and reduce your costs or pass along cost savings to the end client.

Other Market Trends

There are bigger picture considerations and trends, which impact not only the privilege review and logging process, but e-discovery as a whole including:

• Flexible engagement models can help position your litigation team to take advantage of lower cost markets globally and under cost structures, which may be more beneficial to your case load.
• Your team's openness to the various levels of integration can have a compounding impact on review efficiencies and litigation budgets. The ability to strike the right balance between risk, benefits and governing case law should be strongly considered during this evaluation.
• Developing expert workflows is an ongoing trend which should take into account several variables including: technology, subject matter, your business units, key players, historical data trends and priorities of the case team.

Ultimately, courts are finding that considering cost efficient alternatives to an unduly burdensome process serves the interest of all. By considering the pros and cons of utilizing the category privilege log alternative, you will be able to: 1) significantly reduce your review spend through efficiently identifying privilege; and 2) greatly decrease e-discovery hours billed to your end client which may be better focused on pre-trial prep, fact development and other case work.

Ali Waheed is Director of Client Services, Knowledge Solutions for DTI. Leveraging a decade of business development and legal experience with Fortune 500 and AmLaw 100 clients. Disclaimer: DTI does not engage in the practice law as we work at the direction of Client and Counsel. The alternatives provided for above should be weighed against recent court rulings and signed-off on by your Outside Counsel. The admissibility and adequacy of deliverables must be assessed on a case-by-case basis.