When preparing to conduct privilege review, it can be difficult to identify a set of potentially privileged documents to review to determine which ones will actually be classified as privileged. Just as with responsiveness review of documents, a poorly targeted keyword search can either exclude too many documents from review that should have been marked privileged or include too many “false positive” documents that drive up the cost of privilege review. How do you find a good balance of potentially responsive documents? Here’s a benchmark analysis conducted by two legal professionals to provide some perspective for your cases.
In Law360 (Keyword Searches To Improve Your Privilege Doc Review, written by Robert Keeling and Rishi Chhatwal (subscription required, copy of the article available here)), the authors “undertook a look-back analysis using large data sets from three confidential, nonpublic, real legal matters.” (emphasis added) All the documents were previously reviewed and received attorney coding during previous privileged reviews, providing them with objective data sets against which we could measure the results. Using these data sets, they compared a number of different potential methods of locating privileged documents, as follows:
- First, they ran commonly used search terms to identify privilege documents;
- Next, they employed basic privilege search terms often thought of as too broad to catch privilege documents.
They then did a side-by-side comparison of the results and tested and confirmed the results on an ongoing large document review project. According to the authors, the results demonstrated that some keyword searches are an effective privilege-targeting method — and that other common keywords are not, confirming conventional thinking in some respects, and rebuts that conventional wisdom in others. Here are the types of terms they evaluated:
- Outside Counsel Terms: Including terms such as search terms associated with outside counsel — such as law firm names, email domains or email addresses, and unique names of counsel;
- Junior In-House Counsel Terms: Email addresses and unique names of junior in-house counsel;
- Senior In-House Counsel: Email addresses and unique names of senior in-house counsel;
- Specific Phrases: Generic search term phrases you would specifically search for in most privilege reviews;
- General Terms: Generic individual search term words, with some general single word terms (including terms with wildcard characters) considerably more effective than other single word terms.
And, what about the term “confidential”? According to the authors, it’s “a terrible term to use in your privilege review. While the word may appear in privileged communications, those communications almost always include other, more specific terms, such as attorney email addresses or words like ‘counsel.’ Documents where the word ‘confidential’ represents the only term that ‘hits’ on that document are very unlikely to be privileged.”
With a variety of mechanisms to improve the accuracy for identifying privileged documents and the increased popularity of Rule 502(d) orders, the handling of privileged documents in eDiscovery is certainly evolving. I will have more to cover on this topic soon!
So, what do you think? What does your organization do to handle privilege reviews effectively? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.