Page 5 - E-Discovery

NYLJ.COM |
E-Discovery | MONDAY, OCTOBER 5, 2015 | S5

leged documents, there are several places to
PATailored Privilege Reviews
ROFESSIONAL NNOUNCEMENTS
begin including: (1) drafting privilege terms,
(2) performing analysis on email domains to In terms of timing, privilege review is
identify applicable law firms, and (3) iden- often done at the end of a large or complex
The perfect way to inform the tifying the evidence sources most likely to document review effort because the early
contain privileged communications (see focus is usually on fact development. The
New York Legal Community
below regarding the importance of consid- privilege review process is also costly and
ering privilege during custodian interviews).
time consuming and may not be aggressively
• Drafting privilege terms is a common pursued if early discovery indicates that the
practice in e-discovery cases. Useful privi- case may settle. Whether done at the end of
When your firm has news that is important
lege terms include attorney names, legal staff a review or not, reviewing all of the docu-
enough to announce...
names, law firm email domains, substantive ments screened for privilege together with
legal terms and, of course, a search for dec- a thought-out strategy will lead to higher
larations of privilege that are often found in levels of efficiency and consistency during
email or memo headers such as “privileged the privilege document review.
• New Partners and Associates
and confidential.”
Using a layered review workflow can com-
• An email domain analysis involves using partmentalize the process, thereby increas-
technology to parse out the sender and ing consistency and efficiency. To illustrate,
• A Big Win
recipient domains from email headers. For imagine a case with four attorneys who will
example, an email from John Smith whose be working on a privilege review. Ideally the
• New Firm Formation and Mergers email address is [email protected] would attorneys work through the documents, con-
have an email domain of SmithLaw.com. This sistently determining when a document is
is helpful because it can more easily iden- privileged, applying privilege descriptions
• New Firm Name or Location
tify all communications with entities like law for the privilege log and applying redactions.
firms than merely relying on identifying the The problem is that these privilege decisions
individual attorneys who worked on a case.
are highly subjective and the four attorneys
• Upcoming Events and Programs
are likely to make slightly different decisions

across similar documents.
• Recognitions and Awards
Using a layered review workflow, docu-
One of the first things that can ments are batched exclusively to attorneys
be done to protect against A and B. Attorneys A and B only make deter-
minations as to whether a document is privi-
inadvertent disclosures is to leged and whether it needs to be redacted.
Appearing daily on Page 2 Documents actually marked as privileged by
segregate potentially privileged A and B are then exclusively batched to attor-
documents from the rest of the ney C who will only apply a privilege descrip-
in the New York Law Journal
document population. By doing tion for the privilege log. Only documents
marked by A and B as requiring redaction
this, the issue of privilege can are exclusively sent to attorney D to apply
With a bonus feature on
be substantially put aside while redactions.
In this way, there are now only two attor-
NYnLyalwj.ycoerm.com
initial fact development is the neys determining privilege instead of four,
one attorney applying redactions and one
focus of discovery.
attorney describing privilege for the privi-

lege log. The end result is that there will be
• Identifying evidence sources most likely more consistent privilege determinations,
to contain privileged material relies heavily privilege descriptions and the application
upon custodian interviews. For example, of redactions. Further, the overall speed of
privileged material can sometimes be easily the review should increase since attorneys A
identified in someone’s mailbox if they folder and B can quickly work through documents,
all attorney communications into a specific making privilege calls while attorneys C and
mailbox subfolder. Understanding how a cli- D focus on the more time consuming tasks.
ent interacts with counsel is always the best Technology can help the process. Many

way to identify and protect their privileged review tools now offer some form of auto-
documents.
mated review workflow feature wherein
After individual documents that might con- documents are automatically moved from
tain privileged material have been identified, one phase of the privilege review to anoth-
the inquiry can be taken one step further er without the need for manual intervention
by identifying associated documents that known to cause delays and miscommunica-
are also likely to contain privileged mate- tions. These tools often have other advanced
rial. These can include (a) document family features such as prioritizing documents,
members, (b) near duplicates, and (c) email enforcing coding requirements during the

To place your firm’s
threads. Including these associated docu- review and tracking and reporting on the
ments and handling them all together pro- review status.
vides an even higher level of protection and
PROFESSIONAL ANNOUNCEMENTS
can prevent something from slipping through Production Quality Control
the cracks. Once the pool of potentially privi-
contact IS, Account Executive contact SK, Account Executive
leged documents is identified and separated When it becomes time to produce docu-
NDERA INGHIMONA ERNfrom the rest of the document population, it ments, it is prudent to implement and consis-
at (212) 457-9471
is often a good idea to tag all such documents tently apply privilege safeguards to prevent
at (212) 545-6125
or e-mail [email protected]
as potentially privileged. Finally, utilizing the the production of any privileged documents.
or e-mail [email protected]
information gathered by this early privilege One easy-to-apply safeguard is to re-
screening process, terms can be selected check whether any documents slotted for
and highlighted in the review database to production hit on privilege terms or other
alert reviewing attorneys of possible privi- privilege indicators and therefore deserve a
lege issues.
closer look. Documents added » Page S10