Originally published on April 20, 2009 in our free BigLaw newsletter.
Most large firm associates consider "privilege review" no privilege. What's that you say? A trained monkey could do this work? An understandable thought given the drudgery, but the pitfalls of reviewing a massive document production for privilege are real and occur too often for comfort. It's not monkey business.
A Litigation Team Out of Its League …
"Chloe," now a veteran litigator at a firm on the West Coast, knows all too well how a perfect storm of common variables can, in the aggregate, amount to a discovery disaster. As a mid-level associate, Chloe was assigned to work on a document production in a products liability case. Her firm was delighted to land the client, a medical device manufacturer, and embarked upon the case with starry-eyed visions of a lengthy, but manageable, document review. It quickly became apparent, says Chloe, that the case was bigger than anything the team of attorneys had imagined.
Strike one.
"First of all," Chloe reflects, "we were not prepared for something on that scale. Of course, we had sold ourselves as the most capable firm for the job, so when we realized that the document review was going to be much more involved that we had anticipated, we were afraid of being caught with our pants down." Litigators, however, must be prepared to meet any challenge, so the partners gathered for a huddle, enlisted as many reviewers as they could find, and soldiered on.
Suddenly, from the chaos of the battlefield, a heroic figure emerged ... or so it seemed. "Marc," a young, green associate had wowed everyone (or at least the partners) with his unflagging confidence and apparent willingness to work long, hard hours. It did not hurt that Marc had come highly recommended — albeit by his father, who was an important client. He dazzled the partners were dazzled, and it seemed, recalls Chloe, as though he could do no wrong. "With all these documents to review," she remembers one of the partners saying, "it's a good thing we have someone as talented as Marc."
Needless to say, the other associates on the team were not quite as sanguine about Marc's magical abilities. Although the partners could not sing his praises loudly or often enough, the more seasoned associates suspected that Marc's primary talents included patting himself on the back, tooting his own horn, and self aggrandizing at every available opportunity. Chloe summarizes their impressions succinctly: "A little too much hat; not enough cattle."
Strike two.
Further complicating matters, in-house counsel for the client was a relatively inexperienced, and had never dealt with, much less managed, a major litigation. As a result, says Chloe, "she was incredibly skittish. Every normal twist and turn in the discovery process sent her into a panic; any development that didn't go our way had her convinced that we were losing the case."
Strike three.
A Rookie Without Supervision …
Amidst this brewing maelstrom, the privilege review loomed. As Chloe explains, the documents were being reviewed in Summation Enterprise, and had, at least in theory, been "OCR'd" and coded. At some point, Marc — in his infinite wisdom — made a fateful privilege call that nearly derailed the case, or at least the firm's relationship with its client.
The document in question was a chart of notable events in the history of the litigation prepared by in-house counsel. In addition to its fundamentally privileged content, it contained the attorney's marginalia — the sort of thing that most of us scrawl on a document when we are certain that it will never fall into the hands of, say, the plaintiff's attorney.
Although it didn't say anything quite as explicit as "this document was prepared in anticipation of litigation, and reflects my mental impressions, conclusions, opinions, and legal theories," it may as well have. The document was so clearly privileged, she adds, that each of the eight other reviewers assigned to the case had recognized and tagged its duplicates as such. Marc, however, decided that the document should be produced. And so it made its way, unnoticed, into the batch of documents (which numbered in the tens of thousands) produced for opposing counsel.
Strike four.
How did Marc miss this hanging curveball? Well, Chloe explains, a number of factors contributed to the faux pas. "An experienced reviewer would have recognized that the document was, without a doubt, privileged," she says. "But there was no name on it, and Marc didn't know to look at the OCR coding, which would have told him that it was authored by an in-house attorney. Moreover, he didn't realize that it was a duplicate of documents that had been tagged as privileged by other people. Maybe the OCR coding failed because of the marginalia; maybe he just didn't have the experience to de-duplicate. Either way, he made a bad call."
Moreover, she said, because of Marc's status as the team's "golden child," the more senior attorneys were reluctant to quality-control his work. "He bristled when we reviewed his work, and would complain to the partners," Chloe notes. "After they told us a few times that Marc was 'fantastic,' and was doing a 'great job,' we got the picture: don't look over Marc's shoulder. It's not worth it."
Might this explain why the partners didn't catch Marc's mistake, you wonder? Well, Chloe continues, Marc had truly convinced them that he was a document-reviewing wunderkind. "Of course," she says, "there were quality control measures, but when you're producing thousands, or hundreds of thousands, of documents, oversight can be ... well, imperfect. And, unfortunately, the partners were giving Marc the benefit of the doubt, so they may not have been as attentive to his mistakes."
Game Over. You Lose.
Fast forward to the deposition of a minor defense witness. Thinking that there were bigger fish to fry, the partners from Chloe's firm had sent an attorney who was only tangentially involved in the case to cover the dep. Plaintiffs' counsel was moving through his list of questions, while the other attorneys in the room fought off deposition-induced narcolepsy. But, when plaintiffs' counsel paused for a moment to introduce a certain exhibit, the defense attorneys' Spidey senses tingled. "Can I see that?" asked one of the in-house attorneys. The document was handed over. "I recognize this document," he said, after a nausea-inducing pause. "I created it."
Are we still counting strikes?
The attorneys huddled for a brief sidebar, and Chloe's colleague quickly called the partners. "It was," Chloe remembers with a grimace, "the 'Oh No' moment we all fear." But wait, she explains: there's more. The partners talked amongst themselves, and decided that a vociferous objection would only emphasize the significance of the document. "Just let the plaintiffs think that it's no big deal," they concluded. "If we make a stink about it now, they'll realize we screwed up."
By "they," of course, the partners did not just mean "the plaintiffs." They were also thinking of the client, with whom they feared the inevitable, awkward conversation, beginning with the words "mea culpa."
Did their strategy work? Did the clients breathe a sigh of relief, grateful for a debacle narrowly averted? More important, was the debacle actually averted? The answer to all of these pressing questions, Chloe explains bluntly, is "No."
Her firm took the position (which required considerable contortion) that the document may not have been privileged at all. The partners maintained that the document's release probably wouldn't be damaging. Perhaps most importantly, they declined to insist that it should be clawed back.
So what happened? "Well," Chloe says, "by attempting to save face, we lost all credibility with the client. The in-house lawyer managing the case was already skittish, and this put her over the edge. She totally lost faith in us. The document review continued because we were so deeply entrenched by then, but we were 'relieved' as lead counsel, and finished the review under the watchful eye of another firm." And the document? While it did not become a "smoking gun," it wasn't forgotten, either.
Chloe summarizes the outcome in simple terms. "It was," she declares, "a disaster."
Claw Back Privileged Documents Along With Your Reputation …
On the bright side, Chloe says optimistically, there are multiple lessons to be learned from the (plentiful) mistakes made on the road to the aforementioned disaster.
First, always supervise the novice. It may seems obvious, she concedes, but the need for close supervision is often overlooked when it comes to document review, which young associates are frequently tasked with because of its perceived simplicity. Don't assume that privilege review is as easy as looking for the names of attorneys on an email. Don't be swayed by the uber-confident associate who appears to have mastered the task at hand. Young lawyers, she points out, simply don't have enough experience to spot significant issues in documents, and can easily make a bad call. Of course, she admits, you'll never have enough time to re-review every document that goes out the door, so focus your resources on looking for errors made by the least seasoned member of your team — even if he is a client's son.
Second, she says, remember not only to be aware of duplicates, but to remain mindful of the limitations of even the best eDiscovery tools. OCR is not a perfect technology. Vendors are not magicians. No document review platform is flawless. At the end of the day, technology doesn't do the work of document review for us; it simply cuts down on the number of paper cuts.
Finally, always take responsibility for your mistakes. "And," Chloe cautions, "most importantly, if a privileged document comes out in a deposition, object, object, and object again, more loudly. Claw it back then and there." She makes a last, "belt and suspenders" suggestion about what to do next. "After you object, grab the document and rip it to shreds. If you have to," she says, "eat the damn thing."
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