Judge Grimm Encourages Use of Analytics Software for Privilege Review

Judge Paul Grimm, as discussed in the Tip of the Night for December 31, 2017, has issued several key decisions impacting how electronic discovery is conducted. In 2011, he co-authored an article for the Richmond Journal for Law and Technology, reviewing the impact of the enactment of Federal Rule of Evidence 502 in 2008. See, Paul W. Grimm, Lisa Y. Bergstrom & Matthew P. Kraeuter, Federal Rule of Evidence 502: Has It Lived Up to Its Potential?, 17 Rich. J.L. & Tech 8 (2011), available at: https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1341&context=jolt . Rule 502 concerns the inadvertent disclosure of privileged information, and clawback agreements to arrange for the return of such information.

In addressing whether or not a party may be deemed to have taken reasonable steps to prevent disclosure Judge Grimm quotes the Advisory Committee, " . . . considerations bearing on the reasonableness of a producing party’s efforts include the number of documents to be reviewed and the time constraints for production. Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken 'reasonable steps' to prevent inadvertent disclosure. The implementation of an efficient system of records management before litigation may also be relevant." Id. at 34, quoting Fed. R. Evid. 502(b) advisory committee’s note. Judge Grimm emphasizes that courts must take into consideration the usefulness of analytical methods and sampling in the identification of privileged and protected information. One of the goals of Rule 502 is to reduce the cost of reviewing ESI. "If courts find waiver in cases where parties use computer analytical tools properly, yet the parties’ privileged or protected information nonetheless is disclosed, then lawyers and clients never will transition away from the burdensome and very expensive methods that have lead to 'the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information.'” Id. at 38, quoting Fed. R. Evid. 502 advisory committee’s note.

C.D. Cal. Magistrate Judge Ruling on CEO Custodian's Self-Collection

Last month, Magistrate Judge Paul L. Abrams issued a decision, Disney Enters. v. VidAngel Inc., No. CV 16-4109-AB (PLAx), 2019 U.S. Dist. LEXIS 62724 (C.D. Cal. Mar. 18, 2019), ruling on the Plaintiff's Ex Parte Application for an Order Compelling Standard ESI Search and Production from two custodians. The Plaintiffs contended that the Defendant's prior production (in response to an order for communications between VidAngel employees and legal counsel as to the legality of a disc-based service) was inadequate because documents were collected from only one custodian; that custodian

conducted his own search; made his own determination of which documents were privileged; and printed documents to PDF images which stripped them of metadata. They requested disclosure of the number of hits that came up for the search terms they requested.

The Defendant countered that the custodian's (its CEO) familiarity with computer technology made him better able to run document searches than anyone else, and noted that the PDF format had been used for past productions. The PDFs provided by the custodian were reviewed in Relativity by several attorneys who coded them responsive or non-responsive, and tagged some documents for further review if redactions were needed. VidAngel argued that its custodian only excluded search hits which were obviously not responsive, and further asserted that a search of a second custodian's emails (that of its general counsel) would be unnecessary, burdensome, and duplicative because all legal advice would have been received by the CEO.

Magistrate Judge Abrams granted the Plaintiffs' application in part and ordered the following:

1. The Defendant was to review the custodian's search results.

2. Provide email metadata - to; from; cc; subject and date fields.

3. Associate attachments with parent emails.

4. Submit a privilege log.

5. Produce additional documents as necessary

The CEO custodian is required to prepare a declaration stating the following:

1. That he was the recipient of all attorney communications regarding the legality of the disc-based service.

2. Any written communications about the legality of the disc-based service would have been email messages.

3. He used all of the plaintiffs' search terms.

4. Explain why some search hits were not were not loaded to a shared drive for review.

5. His practice for retaining emails from counsel.

6. That he did not delete any relevant emails exchanged with counsel.

If the CEO cannot make a declaration supporting each of these points, the search with the Plaintiffs' terms was to be re-run and all responsive documents produced within 10 days.

7th Circuit Order for Management of Privileged ESI

The Tip of the Night for October 23, 2015 discussed the 7th Circuit's E-Discovery Pilot Program. The [Proposed] Pilot Project Case Management Order No. 2, available on the 7th Circuit's e-Discovery Council site, provides further insight into how the United States Court of Appeals for this circuit recommends that parties protect attorney-client privilege and work product.

This draft order states that parties should provide, "as much objective metadata as is reasonably available" on a privilege log, in addition to stating the basis of the privilege. The order specifically defines objective metadata as data not containing a description of ESI. The order allows for the designation of categories of ESI or documents that can be withheld because their production would be too burdensome.

If there are challenges to the assertion of privilege by one party or the other, the parties must meet and confer in order to make a good faith effort to designate categories for the documents at issue. The parties must prepare briefs on the legal issues pertaining to each category, and provide samples from each category for in camera review by the court if the issues cannot be resolved on the basis of the briefs.

The order also has a section providing for the clawback of privileged documents pursuant to Federal Rule of Evidence 502(d).