THE ATTORNEY CLIENT PRIVILEGE: THE CORPORATE COMMUNICATION CONUNDRUM – PART II

As anyone faced with discovery requests knows, one of the most important parts of producing documents is determining what documents are subject to attorney-client privilege or work product doctrine and must therefore be redacted or withheld. Failing to conduct an effective privilege review can have dire consequences -- from exposure of highly confidential information to even waiver of the privilege. While identifying an attorney-client communication or attorney work product would seem to be an easy task, marked by clear indicia of confidentiality and when an attorney is providing legal advice, in practice, that is not always the case. Privileged documents are often not marked as such, and it is not always easy to tell who is an attorney or when an attorney is providing legal advice, especially when dealing with communications between a large company’s employees and their agents and advisors.

In Part One of this blog post, we discussed how difficult it can be in a corporate context to determine whether an individual document should be withheld or redacted as privileged. The difficulty of this determination is further compounded in a large-scale document production where that decision may need to be made thousands of times over with multiple reviewers potentially reaching different results. Fortunately, as discussed below, there are ways to use technology tools and E-Discovery review platforms to make this task easier and make it less likely that privileged communications or work product documents slip through the privilege review unprotected.

Keyword Searching and Highlighting

Before starting a privilege review, it is helpful to have a good understanding of what documents are likely to be privileged. By conducting due diligence with the case team and the client, we can build on information already known about the case to determine potential topics of privileged communications and likely parties to those conversations. If litigation has been anticipated for a while, this same inquiry can be used to identify potential topics of and individuals involved in protected work product.  

By doing an initial investigation into the players and issues in the case, we can then create a list of names and phrases likely linked to privileged documents. We can use the keyword search capabilities in the E-Discovery review platform, and those names and phrases, to identify a subset of documents for review.  This process may narrow down what terms are not leading to privileged documents or are resulting in too many “false positives” to be helpful, and perhaps most importantly, may reveal other names and words or phrases that can be added to the list to increase the likelihood of catching privileged documents.   

Once the actual review starts, the most obvious way to help a reviewer catch privileged communications and documents is to make it easier to identify them as privileged on their face. The information obtained from keyword searches and reviews can be used to create lists of names and search terms to be highlighted in a certain color in the documents to be reviewed. This highlighting will at least alert the reviewer that there is a greater chance the document may be privileged. At the same time, highlighting can also be used to create a quality control search on the back end to identify for closer review any documents that have highlighted privilege terms but were not coded as privileged on the initial review.

Metadata

Another useful E-Discovery tool for the identification of privileged documents is the revelation of metadata for a given document. Metadata is essentially data about data. For example, when we view a hard copy of a document, all we have is the actual document itself and the information shown on the face of that document. However, when a document is captured and uploaded electronically to an e-discovery platform, we can also see when the document was created and by whom and how the document was maintained in an electronic document management system.  Depending on the type of document, metadata may also reveal tracked changes and edits, hidden comments made within the document, or version histories showing who viewed or edited the document and when.   

While metadata may simply seem like extraneous information, it plays an important role in any privilege analysis. It is crucial to review the metadata in addition to the text of the document itself, as the metadata may in and of itself contained privileged information that may need to be redacted. For example, a hidden comment may contain a reference to legal advice or a privileged communication from counsel. Also, there may something in the way a document is named or filed that indicates privilege or work product. Metadata can also be used to expand or narrow the highlighted terms list.  E-mail addresses and domain names may identify new individuals or law firms likely to be involved in privileged communications or show when a person who breaks privilege has worked on a document.   

Metadata is also helpful when determining whether a draft document constitutes privileged work product.  In the corporate context, it is common for there to be multiple drafts of a document or contract. Metadata allows us to see who has made what edits to the document and when. Consider a common example: a company employee forwards a draft contract to his co-worker stating, “Attached is the draft with Ann’s edits and comments.” The draft itself shows changes to be made and contains comments and recommendations that may not, at first, appear to contain legal advice.  However, suppose the metadata shows us that Ann has an email address with a law firm known to represent the client. Knowing that Ann is outside counsel hired to provide legal advice on potential ramifications of the contract may change the way we view that document and Ann’s comments and make us more likely to catch this privileged document.

E-Mail Threading

E-Discovery platforms often employ tools to combine documents into e-mail threads that can be helpful in identifying privilege documents. As everyone with an inbox knows, a single email often initiates multiple replies or may be forwarded on to others multiple times, resulting in an ongoing electronic conversation with numerous subparts or offshoots. E-mail threading tools combine these multiple branches of e-mails together into an orderly sequence and do so in the most inclusive fashion that allows one to not only see individual e-mails, but also to view the conversation as a whole. Employing e-mail threading in large document reviews is tremendously helpful as it can significantly reduce the number of documents to be reviewed, making the review more efficient, and reduce the number of different reviewers of the same document, making the review more effective and accurate as well.

E-mail threading can also be a critical tool in identifying privileged documents. When email threading is combined with highlighted terms, it becomes easier to tell when an attorney is providing legal advice.  For example, say an in-house attorney e-mails a corporate employee and provides legal advice. That employee may forward the e-mail to another in the company to convey the advice. If the second e-mail were viewed on its own and did not explicitly acknowledge the legal advice being forwarded, a reviewer may not recognize that document as privileged. However, when the two e-mails are reviewed together in sequence, one can more easily determine if the document is privileged. By the same token, if the original e-mail is forwarded to a competitor or other third party, we can easily see the privilege chain has been broken and the initial e-mail is no longer privileged.

E-mail threading may also be helpful in identifying attachments that may be privileged. For example, an article about a product or a published case decision would not in and of itself be protected as privileged. However, when that third party article or case decision concerns the subject of litigation and is attached to an email sent to or from counsel in the context of that litigation, in certain jurisdictions, the attached document may fairly be considered privileged as well. Once again, the context obtained from reviewing the whole e-mail thread may help one make a more logical and accurate privilege determination.

Incorporating Technology into the Privilege Review Plan

Regardless of which technology and tools are used in conducting the privilege review, it is important to have an overall review plan that applies the technology to its best use in the planning, initial review, and quality control phases. For example, with e-mail threading, it is helpful to determine in advance how various e-mails and attachments are going to be treated. We could decide that if the most recent e-mail in the thread is privileged, gather the previous e-mails and attachments, and code all the documents in that e-mail thread as privileged. Making that decision in advance helps reviewers be consistent in how they code these privileged documents. When appropriate, it can even be raised with opposing counsel during negotiation of the e-discovery protocol to make the privilege log more accurate and the process more transparent.

It is equally important to plan out what type of quality control checks we want to perform once the initial privilege review is completed.  As discussed above, we can plan to run a search for all documents with highlighted privilege terms that are coded as non-privileged and double-check that the privilege determination is correct.  E-Discovery review platforms allow us to set up the coding panel in myriad ways to capture different information.  Knowing in advance the quality control checks we plan to use at the end of a review allows us to structure the coding in a way that will capture the necessary information to run the searches we need for those quality control checks.

Conclusion

We have clearly come a long way from the days when an associate would pour through boxes of documents trying to catch and tag privileged documents with a tape flag.  No doubt technology will continue to advance as artificial intelligence finds ways to aid in this process.  While privilege is not always easy to discern, especially in corporate communications, employing technology in our privilege review makes this process easier, quicker, and less risky.

DISCLAIMER: The information contained in this blog is not intended as legal advice or as an opinion on specific facts. For more information about these issues, please contact the author(s) of this blog or your existing LitSmart contact. The invitation to contact the author is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.