Pitfalls of Electronic Privilege Review
By: EMILY E. DUKE
The recent experience of litigants using a third-party hosting service for the electronic exchange of documents is instructive to attorneys supervising electronic document productions. In Thorncreek Apartments III LLC v. Village of Park Forest, the parties used a third-party vendor to host their documents. The producing party was responsible for reviewing and coding documents as responsive, non-responsive, or privileged. The producing party then instructed the vendor to release documents to the opposing party. When privileged documents were produced, a dispute arose as to whether the documents had been inadvertently produced and, if so, whether the producing party took adequate steps to prevent . . . and then rectify . . . the situation. The Court found that the production was inadvertent, but that the producing party did not take reasonable steps to safeguard its privileged documents, and failed to timely rectify the error when the problem was discovered. Thorncreek Apartments III LLC v. Village of Park Forest, Court File No. 1:08-cv-10225 (N.D.Ill. August 9, 2011).
Here, the producing party coded its documents and “assumed” that the vendor withheld the documents marked “privileged.” It did not, however, produce a privilege log when the opposing party was given access to the production database. In addition, because it produced both responsive and non-responsive documents in order to resolve a discovery dispute, the producing party told the opposing litigant that it “was not withholding any documents.” After a rolling 6-month review and production involving 250,000 documents depositions took place, still no privilege log had been created, much less given to the opposing party. Nine months after the initial document production, during a deposition, it was discovered that two privileged documents had been produced. The producing party then took four more months to create a privilege log and listing of inadvertently produced documents. It turned out, that every single privileged document had been produced. The Court was incredulous that, on something as important as a privilege review, the producing party had not been successful in identifying and withholding a single privileged document. The Court was also disturbed by the producing party’s representations that it had “produced everything,” had provided no privilege log to the opposing party to indicate that it had, in fact, intended to withhold some documents, and then its after-the-fact assertion that the production was a mistake.
- 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.