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How to Avoid Clawbacks

Blog Posted in: eDiscovery |
Jan 8, 2018

By Rich Ford, Esq.

While attending the recent RelativityFest, another attendee mentioned he had seen a huge uptick in clawbacks – the act of retrieving attorney work product or privileged information that was inadvertently produced. Clawback agreements can certainly give you an added layer of security in litigation, but you shouldn’t rely on them as your escape plan. So what options do clients have to avoid the clawback fiasco and the hours of time required to rectify those errors? BIA has multiple practices and protocols in place to help remove this burden from our clients producing data. Check out the ones mentioned below to avoid future clawbacks:

Correctly code and log all privilege entries

First, if possible, log all of your privilege entries before you produce. Don’t just rely on an export of some metadata – log it within the review tool. And there are a variety of things you can use to ensure the privileged documents are correctly coded:

  • Communications with the attorneys involved: Comprehensive discussions with counsel about all aspects and claims in the underlying action will provide the team conducting the review a great deal of information related to the case. Having that detailed information, as opposed to just a high-level understanding of the claims, will help the review team learn what to search for during the document review process, as well as in general sweeps of the database. This practice should be paired with other tools as outlined below.
  • Lists of counsel: It’s a good idea to keep lists of counsel that you know are tied to your client – not just in the instant case but in any other case or legal activity.
  • Analytical tools: Analytical solutions, such as Relativity Analytics and Brainspace, among others, can provide invaluable assistance and insight that help the review team make privilege calls more accurately and quickly. Some additional tools and techniques include:
    • Email threading helps a review team quickly identify any replies, threads or sub-threads that may be related to an email that’s been identified as privileged, further ensuring consistency by making sure that all related emails are similarly marked as privileged where appropriate.
    • Near deduplication further aids with consistency by helping find drafts, attachments and other similar documents where privilege might not necessarily be flagged, for example, due to the nature of the parent email (e.g. email sent to opposing counsel and also circulated internally).
    • Categorization can help a reviewer find a document with similar privilege concept when it may not have been recognized previously due to the context of the data.
    • Saved searches allow you to check known third party names that would break privilege.

By combining these practices and using the tools already available to you, you can create a privilege log set that is comprehensive, complete and fully defensible.

Image documents early for production

Time – or the lack of it – can be one of the biggest problems when producing data. Errors with imaging or exporting productions can delay the process of getting data to the opposing party on time. Once the production begins to form, go on and image the documents you know will likely be produced, and create dynamic searches to isolate your native documents.

Better yet, have these searches with these file types set up by default. Creating custom imaging searches for each production causes unnecessary delay at a time when you need to move efficiently and effectively. And if you’re burning media, begin that process at the earliest time possible to make sure there is time to ship the data.

Consider creating additional production volumes to avoid last-minute complexities

While not related to privilege review directly, parties often underestimate the effect that last-minute changes can have on a production process. Late changes in any process bring inherent risks – and that’s an axiom that applies to everything, not just eDiscovery. 

Productions in eDiscovery are often dynamic, and last-minute issues, such as late coding changes, added or excluded documents, imaging exceptions and more can quickly complicate an otherwise straight-forward production timeline – adding unnecessary pressure, time constraints and other complications that are often cited as reasons for inadvertent productions. 

But, there’s a simple way to address this issue – always be prepared to punt such problems to a separate, supplemental production. That way, you can still get the bulk of the documents and data produced, but without the complications that can lead to such problems. Instead, you’ll have ample time to ensure that those last-minute changes don’t impact the quality of the delivery. I’ve been in eDiscovery for a long time – and am a Relativity Certified Expert – and I’ve never had a client object to receiving an additional production volume, especially if it was produced in a timely fashion.

There’s another, likely more controversial, consideration you should think about as well. Ironically enough, removing data from a production can have a much greater impact on timelines than adding data, most especially when a party (or the production specification) takes a no-exception approach to sequential Bates numbering. When that requirement is present, anytime a document is removed from a particular production, nearly the entire process often has to be restarted, adding significant time pressure to an already tight production deadline.

Instead, I humbly submit, that parties should realize that gaps in numbering shouldn’t mean anything other than a last-minute issue arose that required a document or set of documents be removed, whether for technical or further production or privilege considerations, and that it’s not something that should be indicative of anything ominous. In the end, all that really matters is that each document (or page) has a unique identifier for ease of reference, and that any gap in numbering really has no practical effect on the subsequent litigation activities.

In the end, it’s more important for producing parties to be concerned with the timeliness and accuracy of the data being produced instead of ensuring the page numbers flow consecutively. Assuming the data was properly withheld, whether numbering is sequential just isn’t crucial.

That all said, if you remain persistent on sequential numbering, then when such last-minute changes are made, you also need to add time for the production team to conduct additional processes, restart productions where needed and run additional sweeps for privileged documents. Expecting last-minute changes not to impact the timeline simply isn’t practical and can lead to rushed processes – and that can lead to inadvertent productions.

Bottom line: Even with the above protections and recommended processes, always make sure you have a clawback agreement in place, and always use your data and your time to your advantage – because after documents are produced, correcting any inadvertent production issues, even with clawback protections, becomes much, much more complex. In short, it’s better to be thorough, practical and take the necessary time than to rush to production – especially when options like the above are perfectly acceptable and still allow you to meet thoroughly your overall eDiscovery obligations.