Over the past year, TransPerfect Legal, in collaboration with Fieldfisher LLP, has hosted three GC roundtables, where in-house legal teams discussed the complexities of managing privilege in today’s decentralised data environments, amidst challenges such as employment issues, data privacy, investigations, and litigation. One recurring theme has been the ever-present risk of inadvertently disclosing privileged material in a world where information is stored across countless locations. To mitigate this risk, it’s essential to implement effective eDisclosure workflows and tap into the expertise of technologists. Understanding these risk factors and correctly applying technology are key to ensuring privileged information remains protected.

We’ve partnered with Fieldfisher LLP’s Stephanie Marshall, who provides a complementary perspective from the world of private practice.

The Challenges to Detecting Privilege

1. Time Pressures
   
   Lawyers often work under tight deadlines, especially in high-stakes matters. The process of manually identifying privileged information, or even using tools an organisation may have access to, is labour-intensive and time-consuming, requiring careful search and review of vast amounts of data. The pressure to meet deadlines can lead to rushed reviews, increasing the risk of inadvertently disclosing privileged information. The sheer quantity of information companies hold can overwhelm even the most diligent legal and IT teams. Balancing efficiency with zero scope for error becomes critical, yet difficult. Lawyers understand the unacceptable risk of allowing deadline pressure to lead to mistakes that could result in clients revealing sensitive privileged information, or potentially risk waiving privilege.


2. Cost Implications
   
   The financial cost associated with privilege review is substantial. Manual document review by legal professionals is expensive, involving junior lawyers and paralegals billing by the hour. Additionally, the need for repeated levels of review to ensure accuracy can further escalate costs. Clients are more cost-conscious than ever, and GC teams are leaner, but outsourcing everything to outside counsel is definitely not the cost-effective solution they prefer. Legal teams are also increasingly aware of the time cost of internal resources, such as IT spending hours pulling data. However, given the risks associated with losing privilege, getting it right is money well spent.


3. Underutilisation of Technology
   
   Despite significant advancements, technology in the legal field is often underutilised, particularly in the detection of privilege. Many legal teams still grapple with inadequate or outdated tools for identifying privileged information. Traditional methods like keyword searches frequently fall short, especially in scenarios involving complex communications, multiple parties, or documents in multiple languages, which is becoming increasingly common. While advanced technologies such as machine learning and AI show great potential, their adoption remains limited for decisions which are seen as higher risk. This reliance on manual processes is inconsistent and has been shown to increase the risk of errors, despite the significantly beneficial cost position. This knowledge gap in deploying technology properly hinders the ability to conduct thorough and accurate privilege reviews. When lawyers overlook technology, they may also increase the risk of making inconsistent decisions, which can lead to prolonged correspondence questioning their assessment of privilege overall.

How Technology Can Help Address These Challenges

Effective Workflow for Privilege Identification

Technology is powerful. It can identify words, regular expressions (e.g., employee ID number), concepts, context, and even sentiment. However, without the right expertise, these tools are seldom deployed effectively. When lawyers are tasked with identifying something as nuanced as privilege, particularly when assessing whether a document’s content satisfies the "dominant purpose" test, it’s essential for technologists to have significant experience. Furthermore, they must collaborate closely with end clients to ensure that workflows align with the decision-making criteria for identifying a privileged document. Since no workflow will ever be 100% accurate, it should be designed to be slightly over-inclusive rather than under-inclusive, thereby reducing the risk of inadvertently waiving privilege.

While powerful technology holds significant potential for identifying privileged information, expertise and nuanced workflows are essential to avoid gaps and misclassifications. Beyond technical identification, understanding context—such as correctly identifying key personnel or non- legal roles—is crucial. For instance, identifying a law firm’s domain name or GC’s name is relatively straightforward, but there are likely to be numerous documents not properly covered, including materials pertaining to other matters, administrative emails lacking legal advice, and even marketing or event spam. More refined searches that exclude these categories result in fewer overturns upon human review. Additionally, modern case law continues to shrink the definition of who qualifies as a client for internal purposes. Not all communications from a GC attract privilege protection, especially as GCs increasingly support business functions in roles that are not strictly legal, such as strategic or commercial decision-making. Utilising communications maps can quickly identify those within the organisation who may benefit from such protection. The impact of using these and other tools can then be amplified by leveraging machine learning, which can simulate the lawyers’ decision-making processes.

Implementing a structured and well-planned workflow helps mitigate time pressures by ensuring that privilege review is integrated into the early stages of the eDisclosure process, rather than being an afterthought. This proactive approach can significantly reduce the risk of missing privileged documents, ultimately saving time and resources. In particular:

Domain Analysis: Domain analysis can also help identify key counsel and their firms to flag during the review stage, whether simply highlighting their involvement in communications or isolating correspondence for SME review. Additionally, utilising the communication web to identify counsel and earmarking those domains and individuals as potentially privileged can enhance efficiency. Moreover, employing machine learning techniques offers a promising avenue for refining privilege identification.

Predictive Coding: By generating a sample of potentially privileged documents and having lawyers classify them as either privileged or non-privileged, a model can be trained to analyse the wider dataset. Leveraging advanced tools like Brainspace can streamline the process by clustering documents and drilling down to identify conceptually similar ones, potentially uncovering additional privileged documents.

Near Duplicate Analysis: Another effective quality control (QC) step before production is to run the near-duplicate analysis of the documents identified as privileged against the wider production pool. Any identified near-duplicates can then be checked for privilege. This iterative approach not only improves accuracy but also accelerates the review process, ultimately reducing costs and minimising the risk of privilege being missed. Emphasising the role of QC checks, particularly in pre-document production, is crucial for preventing inadvertent disclosure of privileged information. This proactive approach mitigates the risk of embarrassment and potential legal repercussions associated with inadvertent disclosures and possible waivers of privilege.

Conclusion

Navigating legal privilege during eDisclosure requires a meticulous approach that integrates effective workflows, collaboration with eDisclosure partners, and continuous process improvements. While technology provides essential tools to streamline the process and enhance accuracy, law firm consultants make the real difference—it’s like having an F1 team without having a Hamilton, Schumacher, or Verstappen! Their expertise, combined with their ability to create efficiencies and leverage technology, ensures that privileged information is identified as early as possible.

By embracing best practices and leveraging both human expertise and technological advancements, legal professionals can strike a balance between comprehensive disclosure and the imperative to safeguard privileged communications, while also minimising the high costs of disclosure for clients. As the legal landscape evolves, staying ahead of emerging methodologies and tools remains paramount for upholding legal privilege while ensuring a defensible and efficient eDisclosure process.