No one wants to inadvertently produce a privileged document during discovery, yet it happens all the time—often with disastrous results: privilege waiver, embarrassment, even potential sanctions.
Many of these disasters, however, can be avoided. In the latest episode of “Logikcull 10X,” above, we take a look at Logikcull’s innovative automatic privilege tagging feature. Automatic privilege tagging, one of the 3,000-plus automated steps Logikcull takes whenever you upload documents, can help legal professionals identify potentially privileged documents instantly, allowing them to quickly focus their review and avoid the embarrassing, career-damaging incidents.
What’s at stake when a privileged document is inadvertently disclosed? Your client’s case first, your career second. Even when you can clawback the documents, there’s no way to make opposing counsel unsee what has been revealed. Neither can you “clawback” your reputation. After all, there is no easy away around telling the opposing party that you inadvertently produced privileged documents. Nor is there a face-saving way to file a 502(b) motion, or its state equivalent, with the court. (It is, as Judge Andrew J. Peck told Logikcull recently, “an embarrassing motion you have to make, even if you don't charge the client for it and even if you win.”)
Still, despite these risks and despite technology that can easily reduce them, producing privileged documents in eDiscovery is all too common. Take, for example, the recent production disaster involving Wells Fargo. There, outside counsel for the beleaguered bank turned over a treasure trove of unreviewed and unredacted documents to a litigious former employee. That misbegotten production included both sensitive information (Social Security numbers, financial details, and more) about some of the bank’s wealthiest clients, along with a host privileged documents.
The receiving party then took that information straight to the New York Times. In order secure the documents’ return, Wells Fargo’s attorney was forced to issue an affidavit explaining how unwieldy, unintuitive eDiscovery technology, coupled with a misunderstanding over the role of a third-party vendor, left thousands of documents unreviewed and unredacted.
Wells Fargo, of course, isn’t the only example. In another recent case lawyers at an AmLaw 100 firm repeatedly produced privileged documents that should have been easily spotted by a cursory review, including emails directly from counsel and documents containing phrases like “legal” and “guidance.” The failure to catch those documents was so reckless, the court ruled, it destroyed any protections afforded by the parties’ clawback agreement and waived privilege.
Dozens more examples exist; in fact, many practitioners have a tale (hopefully a second-hand tale) of a privilege review gone wrong, a production botched, and a desperate scramble to clawback inadvertently disclosed files.
Modern eDiscovery software can greatly reduce the risks of accidentally producing privileged documents—and it can do so in a way that is quick, easy, and intuitive.
Check out the video above to see just how easy it can be to spot potentially privileged information and be sure to stay tuned for more “Logikcull 10X” episodes in the future.
This post was authored by Casey C. Sullivan, who leads education and awareness efforts at Logikcull. You can reach him at email@example.com or on Twitter at @caseycsull.