In my prior posting Playing with Fire: Producing ESI as Paper we looked at the dangers of producing ESI as paper. In addition to the legal analysis, Judge Facciola outlined a workflow for the parties in Covad Communications Company v. Revonet, Inc. The Defendants represented to the Court that it would take a paralegal five to ten hours or work at a rate of $178.50 for a maximum cost of $1,785.00 to do a privilege review of the documents to be produced. I think using litigation support technology would have expedited the process and taken less time, thus lowering costs. Covad, 7.
As part of the unfolding discovery production dispute, the Defendant offered to produce the emails in TIFF format, but insisted that the Plaintiff pay for a paralegal to “manually delete the non-responsive and privileged TIFF’s that have already been redacted from the paper document production.” Covad, 7. As stated before, this would take up to ten hours for a paralegal to complete.
The Court suggested the workflow entail the paralegal removing the paper documents that were irrelevant or privileged and then finding the corresponding “native” e-mails. The paralegal would then delete the irrelevant ones and move the privileged ones to another receptacle so they can be logged for a privilege log and made available for the Court’s review in case of a challenge. Covad, 7.
The workflow should not have focused on deleting TIFFs or Native Files, but reviewing the discovery production in a litigation support software. The reviewing paralegal could review the production and mark (tag) documents for production or privilege. This could be done with a brut force document review literally reviewing each document. Additionally, running searches for responsive or privileged documents allows lawyers to reduce time reviewing irrelevant documents.
The different litigation support solutions may vary in degree, but all allow for data entry to log a document as “responsive” and “privileged.” This can be accomplished with data entry in a database field, or “tagging” features while may include checking a box such as “Attorney-Client Privilege.” Many products also allow data to be organized in virtual folders the review can create, such as “Plaintiff Discovery Request 17.” Production tools also vary, but most litigation support solutions allow users to “produce” ESI marked for production in an exportable format to their opposing counsel. Conversely, many litigation support vendors are always happy to provide production services.
Using litigation support software would avoid the discussion of “deleting” non-responsive or privilege ESI. Instead, the focus is marking documents for production. ESI that is non-responsive can be marked as such. Additionally, privileged ESI can be logged in the litigation support database. Many litigation support solutions can now generate a privilege and redaction log. This empowers reviewers to focus on analyzing the ESI and maximize the use of the litigation support solution.
There are many ways to push through a automated document review, but the two most basic options are 1) having an associate or paralegal sit in front of the computer and review the ESI like they were going through a box of paper 2) run searches for names, dates, email subject lines or other key words for responsive or privileged documents.
Brute force ESI review can work, but might drive up costs in treating a large volume of ESI like paper. Developing a search protocol is imperative if your review is to have any nuance beyond a brut force review of your database. However, lawyers and paralegals have to know how their litigation support solutions work in order to competently search for responsive ESI to production requests.
Peskoff v. Faber had multiple opinions by Judge Facciola over several discovery disputes, including a lawyer who performed searches for responsive email on hard drives and representing to the Court he had produced all responsive email. The attorney was ordered to describe in detail the nature of each search for responsive email. Judge Facciola later issued an evidentiary order in Peskoff v Faber, 2007 WL 530096 (D.D.C.) regarding whether the lawyer’s search did in fact produce all email messages:
“I must insist that the person performing the search have the competence and skill to do so comprehensively. An evidentiary hearing will then be held, at which I expect the person who made the attestation to testify and explain how he or she conducted the search, his or her qualifications to conduct the search, and why I should find the search was adequate.” Peskoff v Faber, 2007 WL 530096 (D.D.C.).
Personally, I think Peskoff sounded more like a collection and processing situation, but the opinion is not clear what the attorney was using to search the hard drives for responsive email.
Developing quality assurance protocols to ensure responsive ESI is produced and privileges are protected is advisable for competent representation of a client. Victor Stanley, Inc. v Creative Pipe, 2008 U.S. Dist. LEXIS 42025 is a case study in a law firm failing to perform any sort of quality assurance testing in their searches, resulting in 165 inadvertently produced documents. The producing party claimed the 165 documents were privileged.
Magistrate Judge Grimm found the producing party waived their privileges. The Court outlined the following failures of the Defendant leading to the waiver:
- Failure to prove the keyword search was reasonable
- Failure to identify keywords
- Failure to show qualifications of person who came up with search terms
- Failure to show quality assurance testing
- Failure to explain what they did and how it was sufficient
Factoring these opinions together we can see a list if “to do’s” to run defensible searches and protect any privilege information. The first being those using litigation support software must be knowledgeable in how to effective use the solution.
I do not think courts will require an expert witness for statistical analysis of search terms in every case to show a search was defensible in traditional litigation support solutions for document review. For example, no judge requires an expert to explain how a DVD player works or requires affidavits that a paralegal knows how to push “play” or “fast forward.” Many of these litigation support products have existed for 20 years and courts accept lawyers know how to use them.
There would be higher standards for an expert witness in situations including collection of ESI off a hard drive or processing of ESI over those search terms, but that standard would be extreme for someone using common solutions such as CT Summation iBlaze, LexisNexis Concordance or West Case Notebook. However, a party using a litigation support solution may need to have affidavits explaining what qualified persons with knowledge of a litigation support solution did for a privilege search. It is possible an Attorney Client Privilege search might just be searching for the domain name of the law firm in “To” and “From” email. In other cases it may be far more advanced. What is “reasonable” and what a court will expect from a party will likely vary with the facts of each case.
“Quality assurance” could be running a test search and confirming the results match with known privileged documents. For example, if you have known emails from between the lawyer and client, and your privilege search does not include those emails in the search results, you might have a problem with your search terms.
Using litigation support solutions can reduce the time to review ESI, create production sets and privilege/redaction logs. When it comes to litigation support technology, lawyers cannot treat their paralegals like a 14 year old son who is asked to hook up a Wii or program an XM Radio. Understanding litigation support solutions is necessary for effective document review, reducing costs and demonstrating to a court your searches did in fact produce all responsive ESI.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.