Most discovery is handled electronically.
By Karen Whalen
A complete and competent review of the clients’ electronic documents for confidential materials may be impossible to accomplish within the strict discovery deadlines, making privacy difficult to protect. Electronic discovery is the only form of discovery today – clients no longer retain folders of documents in a filing cabinet. They only maintain an electronic file. Yet, the deadlines for document production remain the same as when paper discovery was the norm.
Clients may hand their attorneys a hard drive (or multiple hard drives) of electronic record that include voluminous .pst files of all emails on the subject matter or project – including emails to and from their personal attorneys, corporate attorneys or even the attorneys who were provided with the hard drives to respond to discovery. Paralegals are the ones who are tasked with the job of culling from the clients’ electronic files the attorney-client communications and other privileged documents prior to the production of the records. How does the paralegal review electronic documents within the time constraints allowed by discovery – especially emails covering a long time period that can number in the tens of thousands, not counting attachments?
Software Programs Are Not the Sole Review Tool
There are many litigation software programs that manage electronic documents; however, no matter what method is used. An eyes-on document review is involved somewhere in the process. Sophisticated programs include “predictive coding,” which locate documents similar to those which have been designated as privileged. There are tools to highlight certain key words, such as “litigation” and “claim,” plus attorney names, law firm names, and email addresses of counsel. However, clients forget to give you all the names of their personal attorneys, law firm email addresses may not have the word “law” in them, and even attorney signature blocks in emails may not identify the sender as legal counsel – so those types of communications are not easily identified and not captured by key term searches.
Another type of document not uncovered by a key word search is the non-relevant email, such as an invitation to a company picnic or a private social event. Worse yet (and unfortunately I have encountered this on more than one occasion) is the need to eliminate pornographic materials from client documents. Calendar invites to the company baseball game are innocuous, but off-color jokes and private photographs when included in a document production are an embarrassment and a terrible infringement of the client’s privacy. The client may be guilty of including such materials within the electronic files (most likely the emails are long forgotten by the client), but the client is relying on his attorney to protect his privacy. (I am using the masculine pronoun to include both genders, since this is not a gender-based phenomenon.)
In addition, even if the paralegal is using complex software, documents still need to be reviewed for content, since some privileges are not obvious to recognize and must be determined by a document reviewer. Therefore, regardless of the review platform, it is best practice to review the clients’ electronic documents one-by-one (called linear review) rather than relying on predictive coding or key word searches alone. The key word search is ideal for locating relevant client documents on the client’s servers and classifying critical documents within collections produced by other parties, plus it is an excellent aid for identifying privilege terms, but it should not be used as the only tool for a privilege review.
Privilege Review May Not Be Completed By Deadline
Tedious and time consuming, linear review involves scrolling through email chains of duplicate emails, examining email addresses to identify lawyers, and analyzing content in order to make complex decisions as to what is privileged and the basis for the privilege. Clients may forward emails from their attorneys to third parties, which waives the attorney-client communication privilege. This usually happens pre-litigation, before the representing attorney becomes involved and has the opportunity to advise the client not to forward emails containing legal advice. The privilege “in anticipation of litigation” requires legal analysis. In-house corporate attorneys wear several hats and it can be difficult to tell which communication is actually privileged. Often only a portion of the email is privileged. Keeping redactions consistent and tracking the basis for the privilege for inclusion in a privilege log can be laborious.
All of this e-discovery is expected to be completed within a fairly quick time period. Federal Rule of Civil Procedure 26(1)(C) states that the deadline for initial disclosures is within 14 days after the parties’ Rule 26(f) conference, which is supposed to take place as soon as practicable or at least 21 days before a scheduling conference. Therefore, the initial disclosures deadline is somewhat dependent on when the judge sets the scheduling conference, although most judges are eager to set those quickly. Federal Rule of Civil Procedure 34(b)(2)(A) states that the time to respond to requests for production of documents is 30 days after being served with the requests.
No matter how the deadline is calculated, there are occasions when it is impossible to perform a linear review within the deadline. Either the documents are produced without a page-by-page review, which is obviously not ideal, or extensions of time are agreed upon.
Rolling Productions by Agreement
Large productions are better managed if parties can agree to produce documents when reviews of subsets are completed, rather than by the discovery deadline. The email directory of the company president can be produced in an initial production, the email directory of the project manager in a supplemental, and so on. After all, it takes time to analyze the records that are produced by other parties. One can only ingest a voluminous production in sections, anyway. The disadvantage of rolling productions is that they can take several months to come to an end. There have been times when documents are still being produced as depositions are taking place – even of expert witnesses. Rolling production agreements often contain the caveat that if key documents are produced after critical depositions have taken place, deponents may be re-deposed to provide further testimony as to the documents from a later production. But, there are instances when document productions are compelled outside of the scope of litigation, when accommodations for rolling productions may not be an option.
Response Time for Subpoenas Can be Ridiculously Quick
Federal subpoenas are governed by Fed. R. Civ. P. 45(d)(3), which states that a subpoena may be quashed or modified if it fails to allow a reasonable time in which to comply. However, the rule is vague as to the actual time that is required to be given for compliance, except to state that objections must be served before the earlier of the time specified for compliance or within 14 days after the subpoena is served. Local federal rules may clarify this rule or impose different time restrictions or further clarify Rule 45. For example, a subpoena for a deposition must be served 14 days in advance of the appearance date per District of Colorado, Local Civil Rule 30.1. In any event, the deadline is not long enough for a voluminous electronic document production and allows no room for procrastination.
Attorneys may receive a phone call from a client, not a party to a lawsuit, who was served a month previously with a records subpoena to produce documents the next day, because the client delayed until the deadline was imminent before calling his attorney. An extension of time is sought, but the party requesting documents does not usually agree to several months of extra time, which is realistically the time production could take. In a worst case scenario, the client may not call his attorney before producing a hard drive of the electronic files pursuant to a records subpoena prior to the client being brought into the suit in an amended complaint or a third-party action. The client may not even mention that documents were produced pre-suit, and the lawyer is left to discover copies of his client’s records, including privileged documents, in production sets from other parties. Clients who do not think about contacting their attorneys before producing electronic files may not review their files for attorney-client communications before production.
I recently supervised a production set of our client’s documents that had already been produced by another attorney who represented the client before our firm entered an appearance. The documents were voluminous, in native format, included .pst files, and were not Bates-numbered. I sent the documents to a vendor for conversion to a universal format (.tif) and Bates-number branding, then re-produced the documents to all parties. They contained attorney-client communications. I did not review them before re-producing them. I knew better than that: even though the documents were already produced, privileged documents should not have passed through my hands and out the door. But, there you have it. It happens to all of us, and I’ve done this more times than I want to admit.
Clawback Is Inevitable
The Federal Rules of Civil Procedure anticipate the need for “clawback” – a vivid word used to describe the withdrawal of privileged documents from production. (See Fed. R. Civ. P. 26(b)((5)(B).) There are also many ethics opinions at the state level to cover situations in which clawback is necessary. However, if parties can agree in advance to a clawback procedure, it can prevent adversarial positions and motion work concerning disputes. Protective orders, scheduling orders and case management orders are the likely instruments to memorialize clawback agreements.
Software programs are invaluable tools, but should not be used as the sole process for reviewing documents for privilege, in spite of difficult-to-meet deadlines during electronic discovery. Examination of electronic documents page-by-page may seem too time consuming and lack the excitement of a page-turner novel, but it goes a lot further to insure the protection of the client’s privacy and to prevent the production of privileged documents.
Karen Whalen, ACP, RP, is a paralegal with more than 20 years of experience at Hall & Evans, L.L.C., in Denver, Colorado. Ms. Whalen earned her B.S. degree from Northern Illinois University and her post-graduate paralegal certificate from Roosevelt University. She earned the ACP (Advanced Certified Paralegal in the Litigation Specialty) and PACE (Paralegal Advanced Competency Exam) registered paralegal credentials. Ms. Whalen has previously presented CLE accredited seminars on ethics, legal writing, medical records evaluation, and trial preparation for the Institution for Paralegal Education, Half Moon, LLC, and the Colorado Bar Association. Ms. Whalen has written articles for Facts & Findings and authors a regular column on “Technology” for The National Paralegal Reporter.