All posts tagged privilege

May Webinar UPDATE: Ediscovery Privilege

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:

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.

[Webinar] In Case You Missed It: Protecting Privilege in Ediscovery

With the growth of information subject to privilege review and the increased role of technology, protecting privileged documents is one of the most critical issues for lawyers and litigation teams. While technology has made document review easier than ever, effectively incorporating privilege considerations into the broader case strategy remains difficult. Knowing how to approach privilege review from both a strategic and tactical perspective is incredibly important and critical to ensuring that ediscovery costs, time, and risks are kept to a minimum.

Kroll Ontrack recently presented a webinar, Power-Up Your Privilege Review: Protecting Privileged Materials in Ediscovery, addressing how to best incorporate privilege into your case strategy. Panelists included:

These experts discussed the following intricacies of document review, and how one can—and should—make the most of the Federal Rules and new technologies to perform effective and consistent privilege review.

Embrace Predictive Coding for Privilege Review

Predictive coding can be a litigant’s best friend during a privilege review. With the proper case planning and preparation, predictive coding can help you track down documents that require manual review. Further, predictive coding may even be used to locate and isolate potentially privileged documents in any language. Preventing the disclosure of privilege-protected documents is your first line of defense, and predictive coding is a powerful tool that will help you keep the data that you need to keep.

Consider Clawbacks to Remedy Inadvertent Disclosure

Litigants often fail to fully cooperate in the discovery process, even when cooperation would benefit both sides of a dispute. This is especially true when it comes to privilege review. Far too often, litigants overlook Rule 502(d)—which allows a court to enter a clawback agreement as an order.

Integrate Privilege in Your Case Strategy

In any matter, look at the bigger picture and incorporate strategic considerations into privilege discussions. Litigation teams frequently see the privilege log as a secondary exercise in the discovery process, rather than proactively addressing how they will handle privilege documents. To better prepare yourself for the inevitable privilege issue, download the webinar today!

Case Law: DL v. District of Columbia

Case Law

Court Imposes Sanctions for Extreme “Unheard Of” Discovery Abuse

DL v. District of Columbia, No. 05-1437 (RCL) (D.D.C. May 9, 2011). In this class action dispute concerning free public education under the Individuals with Disabilities and Education Act, the defendant filed a motion to reconsider the grant of the plaintiff’s motion to compel production and the court’s determination that privilege was waived for all e-mails yet to be produced. On the day the court was scheduled to issue its opinion, the plaintiffs’ counsel informed the court the defendants had produced thousands of e-mails days before trial and were continuing to “document dump” after trial concluded. The defense counsel claimed the District was understaffed, committed supplemental searches that yielded tens of thousands of additional e-mails, discovery was voluminous and there were not “enough bodies” to complete the process before trial. Denying the defendants’ motion, the court cited the “repeated, flagrant, and unrepentant failures to comply with Court orders” and “discovery abuse so extreme as to be literally unheard of in this Court.” The court also repeatedly noted the defendants’ failure to adhere to the discovery framework provided by the Federal Rules of Civil Procedure and advised the defendants to invest time spent “ankle-biting the plaintiffs” into shaping up its own discovery conduct.

Notable Quotes

This opinion contained quite a few notable quotes that were not incorporated into the case summary. Here are some of the court’s words that explain the magnitude of its displeasure with the defendants’ discovery shortcomings.

  • “April 6, 2011, though, turned out to be only the beginning of the next outrageous chapter in the ongoing discovery saga that has come to define this case.”
  • “[E]xpeditious and just resolution of cases and controversies is this Court’s abiding lodestar.”
  • “Yet even after being called out in a [2008] Court order, the District – its head apparently buried in the sand – remained committed to its corrupt production strategy.”
  • “Discovery disputes are ‘for better or worse, the daily bread of magistrate and district judges in the age of the disappearing trial.’” (Citing Lee v. Max Int’l, LLC, 2011 WL 1651640, at *2 (10th Cir. May 3, 2011).
  • “But as bad as the District’s violation of multiple discovery orders was, that wasn’t its most appalling discovery abuse in this case. That ignominious designation is reserved for the District’s violation of Rule 26(e)’s duty to supplement its discovery responses.”
  • “The District’s complaints of lack of resources and time pressure fall on deaf ears because it failed to seek relief through any of the Rule-based mechanisms…”
  • If the court had not ordered the defendants’ privilege waived, “the delay would have overcrowded this Court’s already congested trial calendar and simultaneously and unfairly increased the costs for both parties…”
  • “The District had countless opportunities to stop ignoring its discovery obligations. It chose not to, and it should not be surprised that its misconduct has caught up with it.”
  • “Disciplined adhered to [the Federal] Rules and [court] Orders on the part of courts as well as parties is the only tool our system has to wrangle the whirlwind as it were and tame an otherwise unmanageable part of the litigation process.”
  • “The District would be well-advised to invest the time it’s spent ankle-biting the plaintiffs for various alleged discovery abuses in bringing its own conduct in line…”
  • “In short, this is a prime example of the lesson many learn as children: When you point one finger at another, three point back at you.

Case Law: In re Fontainebleau Las Vegas Contract Litigation

Case Law

Document Dump of Servers Leads to Privilege Waiver

In re Fontainebleau Las Vegas Contract Litig., 2011 WL 65760 (S.D. Fla. Jan. 7, 2011). In this bankruptcy litigation, the requesting party claimed the third party waived privilege by producing three servers in response to a subpoena and court orders without conducting a review for either privilege or responsiveness. Seeking to use the information but avoid any adverse consequences, the requesting party offered to “eat” the cost of searching the massive document dump of approximately 800 GB and 600,000 documents for relevant materials in exchange for the right to review and use the data free of the obligation to appraise or return any privileged documents. Reviewing the third party’s conduct, the court found that its failure to conduct any meaningful privilege review prior to production constituted voluntary disclosure and resulted in a complete waiver of applicable privileges. Noting that more than two months after production the third party had not flagged even one document as privileged, the court rejected its “belatedly and casually proffered” objections as “too little, too late.” Accordingly, the court granted the requesting party full use of these documents during pre-trial preparations of the case, but ordered it to timely advise the third party of any facially privileged information it encountered upon review.

Commentary

This case demonstrates the importance of conducting a proper review and production process. The third party in this case simply “dumped” a significant amount of information onto the requesting party without engaging in a document review; instead, the third party complained that the review and production process would be unduly burdensome and delayed production numerous times. Finally, the third party produced three servers without conducting a privilege review, but did belatedly produce a privilege log for one of the servers.

If the third party had conducted a document review, it would not have been in the position to spend costs on numerous motions and would not have faced the penalty of the court declaring that privilege was waived (with the exception of the server that had an accompanying privilege log). The document review process may seem like a daunting, costly and burdensome task, but it is often a necessary step in ediscovery. Thankfully, Intelligent Review Technology exists and can save you 50 percent on review costs, while improving the quality and defensibility of document review. Through use of Automated Workflow, Intelligent Prioritization and Intelligent Categorization, counsel can avoid conducting the strictly manual process of document review that inherently leads to inaccuracies and inconsistencies. IRT also provides transparent reports and real-time metrics, giving counsel peace of mind as to the defensibility of the technology and process. If the third party in this case invested in technology to conduct the document review, their costs would arguably have been far less than what was spent on numerous motions and the cost of opposing counsel’s access to and use of privileged materials in the pre-trial preparation process.

Make Your Case by Leveraging ESI Experts at Trial

Preparing for and responding to electronic discovery is a complex undertaking and thus very difficult for courts and jurors without technical backgrounds to fully comprehend. As disputes over ESI take an increasingly prevalent role in litigation, attorneys are turning to ESI experts to explain and justify their ediscovery conduct when it is attacked. Moreover, the judiciary has begun to suggest that having third-party ESI professionals serve as expert witnesses is a best practice.

Qualifying an ESI Expert
ESI experts must be qualified to testify. Pursuant to Federal Rule of Evidence 702, titled Testimony by Experts, a witness qualified as an expert by knowledge, skill, experience, training or education may testify as to scientific, technical or other specialized knowledge. Rule 702 further provides that expert testimony must be useful to a trier of fact and be based upon sufficient facts or data as well as reliable principles and methods.

A notable case on this topic, Mintel v. Int’l Group, Ltd. v. Neerghen, 2009 WL 1033357 (N.D.Ill. Apr. 17, 2009), is instructive regarding judicial standards governing the qualification of ESI experts under Rule 702. In Mintel, the court rejected the defendant’s argument that the plaintiff’s expert testimony should be barred because it was based merely on experience and thus was not testable. In reaching its decision, the court noted that Rule 702 explicitly permits expert testimony based on experience and testability is not a requirement to establish reliability. Rather, the court focused on whether the expert’s testimony would be helpful to the trier of fact and readily concluded that the expert’s testimony regarding spoliation would be extremely helpful, especially considering the complexity of the electronic evidence issues involved in the case.

The conclusion to be drawn from Mintel is that when courts rule whether to qualify an ESI expert to testify, they will look at both the reliability of an expert’s testimony and whether the testimony is relevant. Mintel makes clear that experience is a valid method of qualifying an ESI expert. Currently, there is not a uniform credentialing system that can be used by courts as a benchmark for determining whether an ESI expert is qualified; therefore, courts will continue to look toward an ESI expert’s training and experience.

When to Examine an ESI Expert
In light of Mintel‘s emphasis on the pragmatic value of ESI expert testimony in explaining complex issues to lay jurors, the question arises: what can ESI experts testify about that would be helpful to a trier of fact?

  • Sanctions. Were preservation efforts sufficient? Was destruction of electronic evidence intentional? Were production efforts reasonable? Are sanctions warranted for these or any other reasons?
  • Privilege Waiver. Did a party waive privilege or work product protection over inadvertently produced documents by failing to conduct reasonable steps such as competent keyword searches to prevent the disclosure?
  • Authentication. Is there sufficient support that ESI is what it purports to be in order to be authenticated as evidence for trial? Is there a proper chain of custody? Is there other technical support such as metadata, history or hash values?

Choosing the Right Expert
There are two types of experts that can potentially be called to trial – consulting and testifying experts. A consulting expert is one who has worked with the case at trial in some capacity, from document retention planning through production. Consulting experts may be called upon to testify regarding their ediscovery conduct and its defensibility. In contrast, a testifying expert is one who was not personally involved in the case. A testifying expert is often an ESI consultant from a noninvolved organization or someone with a doctorate in statistics. A testifying expert is meant to provide a more objective, unbiased analysis.

Regardless of whether a consulting or testifying expert is examined, choosing an expert with prior testifying experience is advisable. An expert who has previously testified is likely to be easily qualified and will also more likely present persuasive testimony. It is also crucial to make sure that any ESI expert you retain to assist in the ediscovery process rigorously documents his or her activities as this will greatly strengthen his or her credibility and persuasiveness if examined at trial.

Conclusion
Trial attorneys cannot ignore the benefits that flow from providing an ESI expert to explain their ediscovery conduct at trial. Electronic evidence issues are increasingly becoming case-determinative or, at least, very expensive as courts deal out sanctions for ediscovery misconduct and negligence. Be prepared to make your case that your ediscovery conduct was reasonable and should not be sanctioned by leveraging ESI experts at trial.

Case Law: Charm v. Kohn

Case Law

Court Strikes Inadvertently Produced Email in Consideration of “Human Fallibility”

Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010). In this discovery dispute, the defendant moved to strike an inadvertently produced email to preclude its further use in the litigation. The email was disclosed when the defendant – a BCC recipient – accidentally responded to all recipients of an email sent by his attorney to co-counsel and opposing counsel. Distinguishing this case from those in which counsel inadvertently discloses attorney-client privileged communications while producing voluminous documents, the court nevertheless considered whether counsel took reasonable steps to preserve the communication’s confidentiality. The court found the counsel’s use of BCC gave rise to a foreseeable risk, but agreed that the transmission was obviously unintended and was an easy mistake to make. Noting it was a close decision, the court stated that “[a]n excessive readiness … to find waiver would tend to erode the privilege” that is “tremendously important in our legal system.” Giving consideration to the fact that counsel quickly demanded deletion of the inadvertently produced document, the court granted to motion to strike and cautioned against “the temptation to seize opportunities arising from inadvertent disclosures.”

Commentary

Preventing inadvertent disclosure of privileged documents has long been a priority for counsel. However, the proliferation of technology has led to a rapid increase in the amount of electronically stored information and increased the probability that privileged documents will be accidently produced. Although only a small handful of states have acted to adopt a rule similar to Federal Rule of Evidence 502, practitioners should undertake efforts to understand FRE 502, and undergo reasonable efforts to protect against inadvertent production and remember to act promptly to rectify the error if privileged documents are produced. Preparing for ediscovery and employing smart technologies throughout the process can help counsel prevent inadvertent disclosures, which in turn can decrease reliance on a rule that may not provide absolute protection in circumstances where privileged documents are accidently produced.

 
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