The Dangers of Trusting Technology to Keep Privileged Documents From Opposing Counsel

It's every litigator's fear - inadvertent disclosure of privileged documents leading to a court finding of waiver of privilege.  A recent Illinois case shows just how easy it is to waive the privilege if you do not stay on top of the technological aspects of your production, even after conducting a complete review and indentifying privileged documents.

In Thorncreek Apartments III, LLC v. Village of Park Forest, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011), the court was faced with a defense counsel who "thought" that merely marking documents as privileged in an electronic database would keep them safe from production. Unfortunately for counsel, every document that had been identified as privileged was produced to opposing counsel. To make matters worse, defense counsel did not learn of the accidental disclosure for nearly nine months of discovery. He then waited an additional four months to produce a privilege log to opposing counsel. Not surprisingly, the court held that while some of documents were privileged when originally created, defense counsel had waived privilege by his actions, or more precisely his inaction.

Here are some key points from the case all litigators should take to heart when engaging in document production:
 

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Dr. Seuss, Cheese and Social Media, Part III: Ethical Issues Involving Attorneys and Their Judges

 

"I am the Judge. I speak for the laws!
I speak for the laws, for the laws have no tongues.
And I'm asking you, sir, at the top of my lungs,"
(He was very upset as he shouted and puffed)
"Stop friending me, lawyers!  Enough is enough!" 

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising.  Part Two of this article then discussed misrepresentations made to third parties on social media and violations of one's duty of candor to the court. 

Since all good things come in threes, we now launch into our final Part Three:  corresponding with a judge in a way that gives rise to the appearance of impropriety, and making inflammatory statements about lawyers or judges.

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E-Discovery: Cutting Costs with Predictive Coding

The cost of e-discovery is forcing good companies to settle bad cases—but not for long. If your litigation budget had ears, “predictive coding” would be music to them.

How it works

Predictive coding is a “technology-assisted classifying process” in which “a human reviewer codes documents the computer identifies (as responsive)—a tiny fraction of the entire collection. Then, using the results of the human review, the computer codes the remaining documents in the collection for responsiveness.” There are four phases to the predictive-coding process:

  • Phase 1: A senior lawyer chooses the responsive electronic documents based on his or her review of a sample of the electronic documents
  • Phase 2: Phase 1 is repeated with senior lawyers until the computer is sufficiently “trained” to apply their conclusions across a wide set of documents (or the whole document set)
  • Phase 3: The predictive coding software is deployed against the entire document set and will distinguish between relevant and non-relevant documents, or prioritize the documents on a scale of one to 100 (depending on the software you select)
  • Phase 4: The documents that are machine-coded as responsive are subjected to a final human quality review and produced to the opponent

How it saves your company money

Using predictive coding software replaces the once overcrowded rooms of contract attorneys who pored over millions of records and billed by the hour. Rather than hiring 15 $80-per-hour reviewers working 40 hours per week for three weeks for a total review cost of $144,000, your company could conduct the same review with three senior lawyers at $600 per hour for eight hours at a total labor cost of $9,600, saving $134,400 without the cost of using the software. Furthermore, the empirical data on predictive coding confirms “the levels of performance achieved by ... technology-assisted processes exceed those that would have been achieved by ... the law students and lawyers employed by professional document-review companies — had they conducted a manual review of the entire document collection.”

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