Email Sentiment Analysis

Sentiment analysis can used to track emotions used in large email data sets. An excellent paper on such analysis is available here. Saif M. Mohammad and Tony (Wenda) Yang, Tracking Sentiment in Mail: How Genders Differ on Emotional Axes, (Sept. 24, 2013).

The authors created a dictionary of emotion related words through crowdsourcing. They analyzed emotions in emails based on both positive/negative/neutral sentiment, as well as the individual emotions of joy, sadness, anger, fear, trust, disgust, surprise, and anticipation.

The relative salience of a word across two target sets is calculated by dividing the frequency of an emotion word by the number of word tokens in a text set, and subtracting it from the percentage in the second text set.

Mohammad and Yang used the Enron email data set to analyze business email communications. While the primary focus of the study was the difference in emotions used by men and woman, the study also looked at the percentage of positive versus negative words used in emails sent by a particular custodian to different recipients:

. . . emotions expressed in emails sent by that custodian to a particular recipient versus the rest of his emails:

. . . and a change in sentiment in emails sent to a particular recipient over a period of time.

Electronic Discovery Institute Course - Class 23: Federal Rule of Evidence 502

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on April 21, 2018. Go to https://www.lawinstitute.org/ to sign up for it.

The course on Privilege is taught by William Butterfield, a partner at Hausfeld; Paul Weiner, an eDiscovery counsel for Littler Mendelson; Kevin Brady, Of Counsel with Redgrave LLP; Magistrate Judge Andrew Peck; John Rosenthal, a Winston & Strawn LLP partner; Magistrate Judge John Facciola; and David Greenwald, an attorney with Jenner & Block.

FRE 502's purpose is to ease the review of privileged documents. It is designed to prevent the inadvertent production of privileged documents, and reduce the cost of both paper documents and ESI. It's a valuable tool that can limit the risk of disclosing privileged information. FRE 502 allows the parties to agree on a protocol. If the parties follow the terms of the protocol, there will not be a waiver of privilege. The parties can set their own ground rules.

FRE 502(a) states that there will be no subject matter waiver whether a production is inadvertent or not. The exception - the rule of completeness - states there will be a waiver if other documentation ought to be considered in conjunction with the disclosed document.

FRE 502 deals with disclosure, but not the use of privileged information. If a privileged document is used subject matter waiver can take place.

FRE 502(b) deals with inadvertent production and when it constitutes a waiver. There is a balancing test:

1. Was the production inadvertent or not? If so ask . . .

2. Did the party take reasonable steps to protect the privilege.

3. Was there a prompt attempt to get the privileged document back?

At the meet and confer the parties should come to an agreement on the procedures to be followed. If they are followed, the reasonableness standard will be met. FRE 502(b) will be applicable if the parties can't get a FRE 502(d) order. Search term analytics work very well in finding privileged documents.

FRE 502(c) deals with the production of privileged documents in a state court proceeding. The more protective of the federal rule and the state rule applies.

FRE 502(d) is the most important part of FRE 502 because it is the most protective of privileged documents. If a FRE 502(d) order is in effect, there is no waiver in the case in which it is issued, or in any subsequent case. In Judge Peck's opinion, some privileged documents will always be produced, no matter how careful the parties are.

A FRE 502(d) order allows a party to claw back its privileged documents. In Judge Peck's opinion it is virtually malpractice for an attorney not to request a FRE 502(d) order if they are handling a large production. A court can issue a FRE 502(d) order sua sponte. A FRE 502(d) order will facilitate quicker production of documents. Defendants, in general, don't take advantage of the protections of FRE 502(d). They often continue to conduct timely, intensive privilege reviews. FRE 502(d) orders give protections against third parties.

Whereas typical document review may cost $1 - $2 per document, reviewing documents for privilege may add an additional dollar to the cost of review. FRE 502(d) orders can save clients an enormous amount of money.

FRE 502(e) is a weaker version of FRE 502(d). It provides for an agreement between the parties in the absence of a court order to be binding on them, but does not have applicability in other proceedings.

FRE 502(f) is a technical requirement providing for protection in federal arbitration or mediation, and allows for the rule to apply to state court proceedings even where there is a choice of law.

FRE 502(g) states that FRE 502 only applies to attorney client privilege and work product protection, not other types of privilege, such as martial communication privilege.

The volume of ESI began to explode in the early 2000s. While there are tools allowing responsive documents to be identified without extensive human linear review, they did not facilitate the review for privileged documents. Quick peek and claw backs allow for this problem to be circumvented, and FRE 502 was adopted to encourage their use. However quick peek agreements are still rarely employed.

The ethical obligation to preserve a client's confidential information will still be effective. Judge Peck recommends that parties get a client's written agreement before conducting a quick peek review. FRE 502(d) do not effect a party's right to withhold non-responsive and irrelevant documents.

Work production protection is a qualified protection, where attorney client privilege is absolute. Work production protection is jointly owned by the attorney and her client - the attorney can assert it on her own initiative. Attorney-client privilege only covers communications from the client to the attorney. Judge Facciola criticized attorneys as having too broad a view of attorney-client privilege.

FRE 502 is an attempt to reduce the amount of information that needs to be listed on a privilege log. A document by a document log may no longer be necessary. ESI would make such logs extremely voluminous. Judge Peck criticized logs which are submitted listing both attorney-client privilege and work production protection as a basis for the same document. If the parties insist on the privilege of each document being reviewed by the court, rather than just a sample, Judge Peck will recommend that a special master be engaged.

Filtering can be used to remove privileged material - and avoid document by document review. Courts will look favorably on efforts to reduce the costs of document review. Judge Facciola noted that judges often get frustrated by attorneys who designate too many documents as privileged. He complained about a particular case in which he agreed to review more than 7000 documents and had to review the same emails many times. It may not be necessary to log certain documents which are clearly privileged. Judge Facciola specifically pointed out that it's not necessary to separately log each email in a long thread.

FRE 502(a) addresses where a party voluntarily discloses a document; FRE 502(d) deals with the inadvertent disclosure of privilege documents.

Case law has a determined that claw back provisions can be implemented even when all parties do not agree on them, in order to help streamline a case. In Brookfield Asset Management, Inc., v. AIG Financial Products Corp., No. 09 Civ. 8285 (PGG) (FM),2013 U.S. Dist. LEXIS 29543 (S.D.N.Y. Jan. 7,2013) concerned a case in which five drafts of board minutes were produced. One side argued that the production waived the privilege over the minutes. The drafts were produced in redacted form, but the redacted text was visible in the load file produced with the documents. Judge Maas ruled that FRE 502(d) allowed the parties to conduct a claw back no matter what the circumstances of production.

Counsel needs to be aware of their ethical duties with respect to reviewing privileged material. Attorneys have an ethical obligation to preserve confidential information. Model Rule 1.6 requires that all communications with a client be kept confidential, regardless of whether or not they are privileged.

New York City Bar Association E-Discovery Outline

In November 2015, the New York City Bar Association published its E-Discovery Identification and Preservation Guide for Lawyers . This is a very simple 5 page outline which may be helpful for attorneys looking to gain a quick overview of the process. It give you some insight on the kind of things likely to be uppermost in an attorney's mind when you're assisting them with the collection of data at a client's offices.

The guides stresses the need to document the identification and preservation of electronically stored information. The main steps are simply determining the key issues; key custodians; relevant date range; and then implementing a litigation hold both directly on the client and on third parties that hold the client's data.

Attorneys are to consider either preparing a forensically sound copy of accessible ESI or a forensic image which includes deleted data. An inventory is to be prepared of data storage systems and a description should be given of the architecture of the email system. The attorney should investigate any monitoring of employees' computer usage, and also confirm that a company's document retention policy has been suspended