Guarding Against Inadvertent Disclosures in E-Discovery

Have you watched the news lately? Somewhere in between the coverage of politics, global turmoil, more politics, sports, and the absurd number of commercial breaks, there seem to be weekly, albeit very brief, reminders that your personal data is not safe. Not everyone is careless with their personal information but in this online digital age we live in, it does not matter. Corporate data breaches have been on the rise in recent years, putting at risk the personal financial information of consumers through no fault of their own. Most of the data breaches discussed on the national news concern corporate giants such as Anthem, EBay, Home Depot, Target and HBO, just to name a few. However, the same breach can happen and may have already happened at your local hospital or credit union. As of August 22, 2017, the Identity Theft Resource Center has estimated, in its Data Breach Stats Report, that there have been an estimated 936 data breaches which have exposed approximate 19 million records in 2017 alone.

As an attorney, the data breach that occurred on July 24, 2017 is of the utmost concern. In that case an attorney mistakenly, during discovery, shared the private financial information of wealthy investors with opposing counsel. To compound the mistake, opposing counsel notified a reporter and the story ended up in the New York Times. The Identity Theft Resource Center estimated that approximately 50,000 records were exposed as a result of the disclosure. According to the affirmation of the disclosing attorney, the records were exposed because she reviewed what she thought was a complete set of relevant documents to be served and mistakenly thought that the vendor would redact the documents prior to production.

Miscommunication and lack of understanding is treacherous. This disclosure could have and should been avoided. What could have been done differently? There are three fairly simple steps that could have prevented the inadvertent disclosure. First and foremost, the attorney reviewing the documents should have known the total number of documents in the document set that needed to be reviewed. This would have and should have been communicated to the attorney before the review began. Next, the vendor should have tracked the number of documents that had been reviewed against the number that needed review and communicated any disparity to the attorney before the documents were green-lit for production. Third, the vendor should have reviewed that all documents marked for redaction actually contained redactions.

An E-Discovery vendor should have standard operating procedures to guard against these types of disclosures. As a litigation attorney you should be aware of the safeguards that the vendor has in place. No matter how much I may tell my wife, jokingly or otherwise (I plead the 5^th), that I am always right, mistakes will happen and the vendor should assist with minimizing those mistakes. A vendor should obligate itself to minimize these mistakes even if employees of the firm and not the vendor is performing the review. So do not be afraid to ask what checks the vendor performs before running the production. What should you ask?

• What is the process to verify that all documents have been review for responsive, privilege, confidentiality, and/or issue tagging before production?

• What is the process to resolve possible issues with inconsistent coding across families?

• Do you verify that each document marked as containing or needing redaction, actually contains redactions?

• How will a draft of the privilege log be generated?

• What is the vendor’s Quality Control process?

• Is it standard procedure to perform this process before the documents are set for production?

• Request that the vendor prepare a draft production for your review before the final production is green-lit.

From the details of this data breach, there was no Quality Control review performed by the vendor. But the vendor could have had additional procedures to ensure the quality of the production prior to the documents being produced. This could have been a timing issue. We all operate under deadlines and have felt the pressure when under the gun of a steadfast deadline. It is imperative that the review begin early enough so that an attorney can take advantage of the safeguards that may be offered.

Kilpatrick Townsend has realized the benefits of building an in-house E-Discovery practice to support its Litigation team with the preservation, collection, review and production of ESI. Consistency breeds predictability and confidence. Having e-Discovery in-house allows for the development of unique processes specifically tailored to meet the needs of the firm. For example, the use of data repositories prevents against accidental deletion of data and operates as a cost saving measure for the client. (click here for blog entry on Data Repositories). By managing client data, attorneys can provide added value during the litigation process by delivering targeted and focused data earlier in the litigation process. Speak to your large corporate client about the benefits of data repositories.

When client information is kept in-house of the Firm’s storage and review platforms, it gives the Firm more control over the information and mitigates the risk of a possible data breach. An ancillary benefit to this control is that using the Firm’s Relativity platform, case teams have access to various dashboard reports regarding the documents, and can easily get a high level reports, that can allow the case team a real time visualization of the review. For example, the case team could chart the responsiveness rate of the review or chart how many documents are tagged as being relevant to a particular discovery request or issue in the case.

Another added bonus of having an E-Discovery practice is the training that can be provided. An E-Discovery team member can train the attorneys, paralegals and staff on how to use the Firm’s Relativity platform to ensure that case teams can effectively use the database in all aspects of the litigation process. The E-Discovery team has members that have certified expertise in all areas of the eDiscovery Reference Model. Members of the E-Discovery team have the following designations:

• Project Management Professionals
• Harvester Certified Specialists
• Relativity Certified Administrators
• Relativity Certified Users
• Relativity Review Specialists
• EnCase Certified Examiners
• LAW PreDiscovery Certified Specialists
• Certified E-Discovery Specialists
• Ipro Certified Administrators