Disclosing Review Methods
Litigation can be a lot like those Russian matryoshka dolls. You know, the kind where you open one to find another, and another and another, etc.? This happens in litigation, when the parties lock horns over the search methods they will employ in e-discovery.
In the past, these disputes may have centered around opinions on what discovery techniques are best. However, with today's computer-assisted review technologies-which can examine infinitely more material than humans ever could-the risks of breaching attorney-client privilege, the work-product doctrine or other privacy rights are higher than ever.
So, what can be done?
That was the topic of an article written by WilmerHale attorneys Robert W. Trenchard and Steven Berrent for the March 19, 2012, issue of the New York Law Journal® published by ALM®.
In their article, "Disclosing Novel Document Review Methods," Trenchard and Berrent wrote that a "combination of statistical sampling, non-waiver and other agreements, and/or in-camera review by a judge or special master can help parties strike an appropriate balance between the goals of minimizing discovery disputes and of protecting other legitimate interests."
They recommended these methods (among others) to mitigate the risks of breaching privacy rights and privileges:
- 1. Employ statistical sampling to provide information to adversaries about the review while not disclosing details about their choice of keywords, seed sets or private information.
- 2. Enter into non-waiver, clawback and "counsel's eyes only" agreements and/or stipulated orders to limit the risks of providing details of a party's review methods.
- 3. Seek in camera review. "Disclosing the confidential aspects of a party's review protocol to the court or a special master may be an acceptable way to balance the interest in assuring the court and an adversary of the integrity of the protocol while protecting private information."
The WilmerHale attorneys recently told the LexisNexis® E-Discovery Brief that the challenges persist.
"The issue of whether and to what extent to disclose search methodologies continues to be a hot topic. Just recently, the Department of Justice [DOJ] inserted a request in its CIDs [Civil Investigative Demands] asking the respondent to identify its search methods, though how much disclosure is required in the eyes of the DOJ is unclear. As we mentioned in our article, courts too are asking for various degrees of disclosure of search methods," the attorneys told us.
"Undoubtedly," they continued, "some amount of disclosure is helpful to the parties and the courts in making the discovery process run smoothly. But the amount of disclosure must be weighed against legitimate work product considerations. Especially in certain contexts, too much disclosure about search terms, predictive coding methodologies, or other aspects of search and review could provide opposing counsel with unfair insight into counsel's opinions about strategy-classic core work product in our adversarial system. The proper accommodation of these competing concerns can only be worked out in light of the particular facts of a case."
- Work with your opposing counsel by providing them with statistical sampling while not breaching your and your client's confidentiality.
- Enter into agreements to seek stipulations so that both sides are able to get the discovery they seek without giving away details of review methodology.
- Ask the court or special master to review the confidential aspects of your review protocols.
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