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.

eDiscovery News for October 15th 2009

A few off the wire…

• Michael Bell reminds us that outsourcing isn’t all bad, it actually creates more jobs.
• Venkat Balasubramani at Spamnotes discusses Amazon is nearing settlement over wrongly deleted copies of 1984.  The importance?  Amazon may be agreeing to never delete any Kindle content – ever!
• This is VERY interesting – the topic of SMS messaging.  IT-Chuiko is reporting that computer forensic specialists have devised software to delete text messages in case your cell phone is stolen.  I wonder how that would play out in court…

eDiscovery News for October 6th 2009

Tuesday’s tidbits:

• Mark Ross, from Law-Scribe’s blog, has posted the release of “the first comprehensive publication addressing the legal outsourcing profession”.  Along with him, are contributors such as Ron Friedmann from Integreon and David Hickey from Winston & Strawn LLP.  It’s about $500 if you want to purchase it.
• Electronic Discovery Law discusses the recent outcome in Leor Exploration & Prod., LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009).  According to the site, “the defendant had no reasonable expectation of privacy as to emails transmitted through plaintiff’s server and thus, no attorney-client privilege as to those communications.”
• To go along with the EDL posting, the Law Clerk Connection blog discusses whether or not free Gmail service waives attorney-client privilege.  The fact that Gmail has a disclaimer stating that it reads every email to determine targeted advertising, could waive any attorney-client privilege within such a communication.
• The Practising Law Institute has announced a seminar entitled Electronic Discovery Guidance 2009: what Corporate and Outside Counsel Need to Know.  It’s on October 28th in Chicago.  Go here for registration info.

eDiscovery News for October 5th 2009

Another Monday:

• Christopher Spizzirri at Delaware eDiscovery talks about all the hype legal project management is getting.  The emphasis is that a culture needs to be created, not simply an implementation of software. 
• Megha Pande, at Legally Yours, summarizes a comparative analysis of the Indian and Chinese legal outsourcing markets.  The analysis was done by Jalal Alamgir and Matthews Sullivan, who see stronger benefits in India.
• Megha also breaks down James Dunning’s prediction on the future of legal outsourcing.
• The Posse List has recently followed the IQPC Conference in Belgium and highlights Chris Dale, founder of the E-Disclosure Information Project.