Privilege Review Gets More Complex

Reviews need to get cheaper.  If it’s not going to happen in the good ol’ U-S-of-A it’s going to happen elsewhere – like India.  Does it have the requirements needed?  How about good command of the English language?  Check.  What about a rigorous educational system that will ensure lawyers have great attention to detail?  Check.  What about the ambition, resources and know-how?  Check, Check, and Check.  As data security gets better in the U-S-of-Asia, the LPO industry will continue to command US and UK business.  So once that’s all done, we’ll see the end to onshore, large and mid-scale document reviews?  Not so fast.

Privilege reviews are not necessarily bound for Hindustan just yet.  A few years ago I wouldn’t have thought this way.  Anything that sniffed of privilege – whether a document contained an attorney, had the word “privilege”, or had some unknown scribbling – was marked for privilege review.  So basically this was a terrible filter for determining privileged documents during discovery, but, because of resources, technology, judicial leniency, etc., this was tolerated a little.  Not today.  A few years ago we were reviewing documents from a few years to decades ago.  Electronic discovery at this level it’s at today was not contemplated by the private sector.  Documents weren’t sent to attorneys unless there was a legal issue involved.  Moving forward, I feel pretty sure, you won’t see this kind of diligence. 

What we’re going to see is every document, and it’s mom, sent to an attorney, or contain the language “privileged & confidential” or “attorney-client communication”.  Right now most reviewers are told to mark that privilege and move on.  And yes, there should be a special privilege team reviewing those documents and determining the proper status of such documents.  Unfortunately, we’re going to see an overwhelming amount of these documents tagged for privilege.  Why?  So a company can protect virtually any sensitive document it wants to.

Because of this, there needs to be a clearer understanding of what makes a document privilege.  Is the communication enough?  Or must it be an issue directed at an attorney, where it is within the attorney’s legal and business duty to oversee such an issue?  Whatever it is, you can believe in-house counsel wants their co-workers to be extra careful.  No more whimsical forwarding of possibly privileged, confidential, or any sensitive material without having some indication this document is privileged – even though it might not be.

More privileged reviewers will be needed when this eventually occurs.  And what happens with more reviewers?  Less consistency – especially when the rules are not clearly defined (a problem that infests the document review world.)  But even with rules, there will always be exceptions.  There will always be documents and situations and contexts that won’t be contemplated – where a grey area exists. 

Indian law doesn’t even recognize the communication of a client with in-house counsel as privileged (http://www.sourcingmag.com/content/c061218a.asp).  The cultural understanding makes this the first hurdle.  The next hurdle would be to train these foreign attorneys in understanding how to analyze potentially privileged documents.  The method will become difficult and tedious with the growing intolerance of judges and persistence of plaintiff counsel. 

So while reviews are going to India, I can envision a day where every doc could be possibly privileged.  Ok, maybe not that far, but a lot closer than a trip to India.