Privilege Review Strategies, an Interview with DiscoverReady's Jim Wagner

By Joe Howie
 

This article outlines the approach taken by DiscoverReady in designing its PrivBank™ system which uses proprietary processes and technology to greatly increase the chances of finding privileged records while simultaneously lowering the costs and time required to conduct such reviews. The concepts and approaches outlined in this article should be useful to litigants concerned with identifying privileged records whether they use DiscoverReady’s services or software or whether they are designing their own process or system. My thanks to Jim Wagner, CEO and co-founder of DiscoverReady, for agreeing to share some of the insights that DiscoverReady has learned through years of providing privilege review services.

PrivBank is a proprietary process, a technology and a database for collecting data and insight gained from processing over 10 million electronic files (over 100 million pages) for privilege review purposes over hundreds of cases. DiscoverReady has accumulated a database containing names, e-mail addresses and domain names associated with attorneys and law firms from around the world. It also has spent literally thousands of hours formulating and refining complex queries for identifying privileged communications and work product.

Even without any case-specific information, DiscoverReady is able to identify a high percentage of privileged records using the database and stored queries. If DiscoverReady has processed prior cases for the client, the records earlier identified as privileged have been segregated in a “PrivBank.” DiscoverReady uses the content and “fingerprints” from those files to identify key indicia of privilege for the new records, thereby building an ever increasingly effective privilege screening process.

DiscoverReady can also conduct client interviews to add the names of inside counsel, outside counsel, key client contact, legal department vendors and terms that may have been used in attorney-client communications in the case.

Potentially privileged records are classified in different tiers according to the likelihood of them being privileged and the chances of having false positives. Records previously identified as having been privileged have the highest probability of being privileged with very little chance of false positives. Correspondence with known counsel is also highly likely to be privileged; records identified as being potentially privileged based on general queries looking for terms like “privileged” will have the lowest confidence of being privileged and the highest risk of false positives. Records in the different tiers are given different levels of review.

No process can be guaranteed to be 100 percent effective, and even a process such as DiscoverReady’s requires a heavy consultative element, but if a privileged record is inadvertently produced, having a thoroughly documented and tested process like PrivBank will go a long way in showing that “the holder of the privilege or protection took reasonable steps to prevent disclosure” as required in Federal Rule of Evidence 502.b.2., thereby maximizing chances that the disclosure will not result in waiver.

PrivBanks is available on a Software-as-a-Service (SaaS) basis, and the results can be used in a variety of review systems.

For further information, contact DiscoverReady at info@discoverready.com.

This article appeared originally in the January 2009 ALSP Update, the monthly publication of the Association of Litigation Support Professionals and is reprinted with permission. Read more about this nonprofit membership organization at www.alsponline.org.