Every four years, the Summer Olympic Games crowns the winners of the 100-meter dash and dubs them the fastest man and woman in the world. Currently, the world record for the men’s event is 9.58 seconds, while the women’s record for the distance is 10.49 seconds.
Nestled between these two impressive records is the speed of the attorney who reviewed documents at a blistering pace in a recent case involving First Technology Capital, Inc. In that case, First Technology Capital (FTC) turned over a supplemental production of 1,500 documents. When the defendant notified FTC that 45 of those documents “carried hallmarks of privilege,” FTC sought to recover them under Federal Rule of Evidence 502(b), which prevents waiver of the privilege if the producing party inadvertently produced documents, took reasonable steps to prevent the disclosure, and took prompt steps to correct its error.
In analyzing FTC’s request, the magistrate judge examined FTC’s process for reviewing the documents. The judge focused on the “review economy” of FTC’s counsel, who claimed to study each document page by page. But given the measly 4.1 hours counsel spent on privilege review, the judge determined that “the rapidity of review indicates an unreasonably small temporal component to the process”:
Having looked at the 45 pages carefully, the Court is dubious that 9.84 seconds, about the time of an Olympic 100 meters race, is a reasonable investment within which to identify a document, consider author and recipients, appreciate subject matter, assess for discovery responsiveness, assess for [Kentucky] and federal work-product application, gauge for any exception, and finally make the decision to withhold or produce. This is especially so where only parts of pages may be under protection, necessitating redaction.
The judge ruled that this timing, the failure to provide a privilege log, and the flawed results of the review demonstrated an unreasonable lack of care that did not warrant protection under Rule 502(b).
Lawyers who insist upon manual review to prevent the disclosure of privileged documents should take note of this decision. Many efficient yet cost-effective ways exist to search a corpus for privileged documents—all of which will yield better results than page-by-page review. At the most basic level, counsel should search for documents using keywords likely to indicate privilege. Furthermore, to ensure that calls remain consistent between similar documents, counsel should employ more advanced tools, such as concept clustering and e-mail threading. In addition, technology-assisted review can employ privilege keywords to rank the likelihood that particular documents should be protected. That way, counsel can assign the most experienced reviewers to pore over potentially privileged documents.
Taking steps such as these can reassure judges—as well as clients—that counsel have taken reasonable steps to protect sensitive information and ultimately safeguard the privilege.