Document review can be a complex process with high risk of extensive motion practice if there is a mistake. Way back in my days in law school, document productions were not discussed in Civil Procedure. However, just as understanding personal jurisdiction, service of process, and venue, are the nuts of bolts of any lawsuit, discovery is the backbone of civil litigation.
The production dispute from In re Telescopes Antitrust Litig can happen to any litigant. The Court had ordered multiple production deadlines. The Defendants had produced more than 3.8 million documents in the case. Weeks after the final production deadline, the Defendants produced another 51,000 documents. The Defendants attempted to clawback the 51,000 within 24 hours of production, citing that there were inadvertently produced privileged records in the production. In re Telescopes Antitrust Litig. (N.D.Cal. Aug. 22, 2022, No. 20-cv-03642-EJD (VKD)) 2022 U.S.Dist.LEXIS 150470.
The Plaintiffs [understandably] were not happy with the late production and clawback. Meet and confer communications were exchanged and motion practice followed. The Defendants made multiple updated productions to withhold privileged and nonresponsive records as the dispute heated up to motion practice. Ultimately, the Defendants produced 49,000 records and withheld 1,800 records as nonresponsive and 190 as privileged. In re Telescopes Antitrust Litig., at *6.
U.S. Magistrate Judge Virginia K. Demarchi did not condone the Defendants’ late production; however, she did not hammer the Defendants with sanctions under Rule 37. Judge Demarchi reasoned that the Defendants had corrected their non-compliance by producing records identified by the Plaintiffs, produced a privilege log, and offered to provide any additional information about the non-responsive records the Defendants withheld from production.
The Court addressed the Plaintiffs’ argument that the Defendants should have produced any ESI that was a hit to a search term without conducting any additional review. The Court never made such an order. In re Telescopes Antitrust Litig., at *11-12. Furthermore, the Defendants explained they used additional search terms not to cull records from production, but to identify records that were potentially responsive that required manual review, in order to avoid inadvertently producing non-responsive records with privileged, private, or sensitive information not responsive to the Plaintiffs’ requests for production.
Judge Demarchi closed out her order with the Plaintiffs could not review any of the records that were identified as privileged or non-responsive. As for the privileged and non-responsive records, the Plaintiffs had specific dates to challenge those designations.
Bow Tie Thoughts
There is risk of producing privileged or confidential information in any discovery production. The risk factor only increases with the amount of electronically stored information to review for production. Litigants have to be thoughtful and creative in develop search strategies to identify responsive information and protected records.
In one case I worked on long ago, we created a predictive coding model to identify attorney-client communications. We represented a large company that had used multiple law firms for different matters. The predictive coding training set included records of known law firms that provided legal advice to the client. The predictive coding model identified communications from a law firm that was not include in the list of firms from the client. A point to predictive coding for helping identify privileged communications.
eDiscovery applications now include technology assisted review (or “A.I.”) features such as clustering to help identify similar records, which is great for identifying responsive or privileged records. The task at hand is knowing how to use these features to identify known issues and the ever challenging “unknown” issues with ESI, such as the surprise spousal communications, and other unexpected records that can cause whiplash.