E-Discovery Best Practices: Reducing Your Risk of Inadvertent Disclosure: Part 3

This is my third and final column in a series on reducing the risk of inadvertent disclosure of privileged and confidential information. My focus here is to examine a few practices worth considering when structuring legal document review and production processes. These practices can be useful for both meeting the “reasonableness” standard and potentially reducing the likelihood of inadvertent disclosure.

The practices include:

• Have in place a defined system and protocol for identifying, preserving, collecting, and evaluating electronically-stored-information (ESI). A well-defined process will reduce time required for production, reduce cost, and improve accuracy of the production. Be sure to understand the technology to be used in preparing a responsive production as well as the overall process for searching, reviewing, and producing ESI.

• Develop and seek appropriate orders and agreements under the civil practice rules of the jurisdiction. Judge Peck said “[i]t is akin to malpractice if you’re the producing party and you have more than five documents to produce, to not consider or obtain a 502(d) order.”¹ In addition, cross-reference agreements and orders.

• Confer with opposing counsel as appropriate to develop an agreed discovery plan. Discuss items mentioned above as well as search terms and method; key custodians, and internal and external counsel for privilege searches; and techniques, such as predictive coding and clustering.

• Use automated tools to reduce the amount of material to be reviewed by members of the litigation team. Consider Boolean searches, concept searches, metadata filters, language-based approaches, statistical clustering, e-mail threading tools, and other proprietary strategies. Consider using tools that allow for categorization and clustering of documents to speed review. Work closely with an e-discovery specialist to assist in narrowing search processes to produce a responsive collection.

• Ensure documents flagged for redaction are redacted. Have a system in place to track documents needing to be reviewed to ensure that they are reviewed, and make sure team members understand the system.

• Before producing, run quality control searches on the proposed production using the system and process developed for the initial production to ensure that responsive materials are provided and privileged materials have been culled out. Sample the results to check for accuracy.

While there are no guarantees that these steps will prevent an inadvertent disclosure, they are reasonable steps to take to attempt to prevent such a disclosure. Finally, the steps may seem overwhelming and expensive. While technology required to effectively handle review of ESI may seem costly, attorneys and parties should remember that the cost of a review of ESI, if human beings had to perform the same function, would be many times more and take significantly more time. Learning the ins and outs of effective use of technology, coupled with proper use of practice rules, protects privileged and confidential information and reduces costs.

Feel free to visit the Legal Services page of our website for additional information on industry trends and best practices including case histories, whitepapers and more.

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1. Rhys Dipshan, “Federal Judges give 4 Ways to Survive E-Discovery Expectations,” Sep. 13, 2017.