As the temperature soars outside, stay cool with Kroll Ontrack as we delve once again into the depths of ediscovery privilege protection this July.
Corporate Counsel Article: Ediscovery Privilege Protection
As you may remember, Kroll Ontrack presented a webinar in May discussing methods of Protecting Privileged Materials in Ediscovery. Building upon what was discussed in that webinar, Kroll Ontrack’s latest article, Mastering Privilege Protection During Ediscovery, delves further into what it takes to maintain ediscovery privilege protection in this modern age. Authors included:
Jeff Schomig | WilmerHale | Attorney
Sheldon Noel | Kroll Ontrack | Account Executive
Topics in the Corporate Counsel article contained a deeper analysis of the topics discussed in the May webinar, including:
Embracing Predictive Coding for Ediscovery Privilege Review
To guarantee that predictive coding is employed, ensure that the technology is trained to recognize the characteristics of privileged or non-privileged documents to reduce the document volume for review while ensuring at the same that that the now smaller document set is fit for an efficient human review.
Integration of Privilege in Case Strategies
Early preparation is key to successfully ensure that privilege review tactics are integrated into case strategy. To ensure this, first reasonably ascertain all the necessary facts in your organization that relate to privilege and internal investigations prior to the review process. Understanding the legal communication flow and key litigation matters will help make the discovery process easier and more efficient in the long run.
Secondly, when dealing with large cases, the cost of organizing and producing a large privilege log must be considered. To mitigate these costs, some courts have permitted parties to forego individually logging documents and instead asserting claims categorically.
Considering Claw Backs to Remedy Inadvertent Disclosure
While the ultimate goal in ediscovery privilege protection is to avoid inadvertent disclosure, mistakes happen and privileged material may be disclosed to opposing parties. Understanding and properly utilizing FRCP Rule 502 to rectify the error can be a way to regain the improperly disclosed materials. However, Rule 502 is not guaranteed to reinstated privileged protection for disclosed material, so counsel should not rely on the rule as the all-purpose solution. In addition, the Rule 502 claw back can be written into an agreement between parties prior to production. This agreement can therefore be further enhanced through Rule 502(d) if the court enters the parties’ agreement as an order. Another alternative for counsels would be carefully document the review process and ensure that the personnel running the process are qualified to prevent improper disclosures.
For more information, be sure to check out our May article on Kroll Ontrack’s webinar, Power Up Your Privilege Review: Protecting Privileged Materials in Discovery.