The tools are not as important as the process. Technology can only take your project so far as seen in Thorncreek Apartments III, LLC v. Village of Park Forest.
Village mistakenly uploaded 159 privileged documents for Thorncreek as part of the production, which included every document marked as privileged, as it expected Kroll’s software to automatically withhold privileged documents.
The emphasis on the word EXPECTED is mine. Technology does not run on its own… it needs people. Technology needs project managers who understand what the technology can and can not and/or should and should not do. Technology and project managers both need project stakeholders (i.e. attorneys & paralegals/ clients) who will take the time to listen and understand that we must work together to effectively plan for quality control and then take the time to actually do the quality checks before productions. However, as noted in the quote below from a law firm’s blog, e-discovery project management is a TEAM effort and a single person probably should not have been expected to do everything themselves.
In analyzing whether Village waived its claim of privilege with respect to six inadvertently produced documents, the Court noted that simply marking documents as “responsive,” “non-responsive” and “privileged” falls “well short of what we would expect for an adequate account of the review procedure.” Village argued that its efforts to protect against waiver were reasonable because it believed that by marking the documents as “privileged’ in Kroll’s online platform, they would be automatically withheld. However, the Court found that Village employed only a single attorney to review the documents to be produced and Village failed to review the documents uploaded for Thorncreek to view for nine months. Finally, the Court cited the lack of a privilege log in finding that Village did not act reasonably to protect its claim of privilege. In doing so, the court held that Village waived privilege to the six documents.
Here are a few other online resources that discuss what went wrong with this case…remember: The tools are not as important as the process. It’s not that there is anything wrong with online review … the issue here is that the project management methodology was lacking the step for quality control and understanding of the technology (tools) being used.
This article offers some practical tips for managing expectations:
- communicate clearly with vendors, don’t “assume” that documents marked “privileged” will be withheld from the production – tell the vendor to withhold them (even if the vendor is an experienced litigation support vendor);
- produce a privilege log early on and deliver it to the opposing counsel – if a document on the privilege log is in the production set, and opposing counsel discovers that, s/he will be obligated to inform you;
- better yet, use your privilege log to spot-check the vendor to assure that documents marked “privileged” are, in fact, withheld from the production;
- even if you are in the throes of a busy deposition schedule, when you learn of an inadvertent disclosure, act quickly to identify the scope of the problem and request the return of privileged documents.