E-discovery requirements raise at least two significant concerns for in-house counsel: (1) controlling costs associated with collection and production; and (2) inadvertently producing privileged information. And these two concerns force in-house lawyers into a Catch-22 situation: a complete pre-production privilege review constitutes a significant cost item; yet, producing documents with limited to no pre-production privilege review risks inadvertent disclosures and privilege waiver, which could result in adverse ethical and legal-strategy consequences.
In my article, Privileges, Clawbacks, and Inadvertent Disclosures–Is Technology the Solution?, published in the January 2013 issue of The Corporate Counselor, I argue that Federal Rule of Evidence 502 and clawback agreements have proved inadequate to control costs and reduce privilege waiver risks. Instead, in-house lawyers should consider technology assisted review (TAR) software as a tool for handling these competing concerns. TAR software, also known as computer assisted review or predictive coding, uses sophisticated algorithms to review electronically stored information and return only highly relevant documents. Use of the TAR software was recently approved by Magistrate Judge Andrew Peck in Da Silva Moore v. Publicis Groupe, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012), and this decision will likely persuade other courts to approve its use in e-discovery processes.
The article discusses FRE 502, clawback agreements, courts’ treatment of inadvertent disclosures, and how TAR software provides an alternative, and better, solution. You may access the article at this link. Thanks to ALM and The Corporate Counselor for permitting use of the article in this blog post.