Predictive Coding – Clawing Back Privileged Documents

By Hayes Hunt and Jillian R. Thornton

With regard to privilege review, lawyers utilizing predictive coding of ESI need to be especially vigilant not to inadvertently produce privileged documents. Although predictive coding can be used to assess privilege as well as relevance, lawyers need to evaluate the benefit compared to the risk of disclosure. Under the federal rules governing clawback, a “disclosure of a communication or information covered by the attorney-client privilege or work production protection … does not operate as a waiver in a federal or state proceeding if (1) the disclosure is inadvertent; (2) the holder of the privilege took reasonable steps to prevent disclosure,” as well as reasonable steps to correct the error. Thus, whatever method of ESI review lawyers use, it must rely on reasonable steps to prevent disclosure. This is a subjective standard, and lawyers using predictive coding would be wise to carefully document the process of how they code for privilege. In at least one federal case, the court has held that a party waived its right to attorney-client privilege by mistakenly producing privilege documents after employing a faulty keyword filter. See Victor Stanley v. Creative Pipe, 250 F.R.D. 251 (D. Md. 2008). Part of the court’s decision was based on the defendant’s “regrettably vague” explanation of how the keywords were developed, how the search was conducted and what quality controls were employed. Thus, the need for precision in designing the search program and extensive quality control is obvious.

Given the ever-expanding universe of ESI, most lawyers would be wise to consider using computer-assisted review and especially predictive coding. After all, the research has shown that predictive coding is more precise, makes fewer errors and identifies more relevant documents than human reviewers. This should not come as a surprise when one considers the differences in opinion among lawyers about what information is “relevant.” When you add millions of pages of documents, fatigue plays a role for human reviewers. Based on these factors in addition to the dramatic saving of time and money, it is clear that predictive coding and similar methods are going to revolutionize how we conduct e-discovery.

Published in The Legal Intelligencer on June 27, 2012