The Real Cost of Privilege Review Patrick Oot, Esq. - Verizon, Director of Electronic Discovery and Senior Litigation Counsel Anne E. Kershaw, Esq. – A.

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Presentation transcript:

The Real Cost of Privilege Review Patrick Oot, Esq. - Verizon, Director of Electronic Discovery and Senior Litigation Counsel Anne E. Kershaw, Esq. – A. Kershaw PC // Attorneys and Consultants

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants The Current Privilege Review Model 1 st Tier ReviewerContract Attorney $50/hr 2 nd Tier ReviewerStaff Attorney $150/hr Outside Counsel Final Privilege Call Associate $350/hr

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants 2,403,299 Million Documents1.3 Terabytes Documents Were Collected From 83 Employees In 10 States Case 1: A Recent Dept. of Justice 2 nd Request Statistics About The Case:

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants 110 Attorneys at Law Firm 2 Conducted Relevance Review on Remaining, Catching Privilege Key Word Misses 115 Attorneys at Law Firm 1 Conducted Privilege Review on Documents with Key Words Indicating Privilege 4 Months – 7 day weeks - 16 Hour Days Case 1: A Recent Dept. of Justice 2 nd Request Statistics About The Case:

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Cost Of Privilege Review First Tier Review of Documents with Key Word Hits Indicating Privilege $2,295,144

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Cost Of Privilege Review Law Firm Billable Hours for Final Privilege Calls and Preparing the Privilege Log $5,480,854

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Final Expense Of Privilege Review at Law Firm 1 $5,480,854 Outside Counsel 1st Tier Review $2,295, $7,775,998.21

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Final Expense of Relevance Review at Law Firm 2 $4,074, Outside Counsel 1st Tier Review $1,748, $5,822,874.4

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants The Cost of Protecting Privilege Without FRE 502 $7,775, Law Firm 1 Law Firm 2 $5,822, $13,598,872.61

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Why Do We Use This Expensive Process Concerns of Privilege Waiver: Subject Matter Waiver Inadvertent Disclosure Ineffective 502(a) 502(b) 502(d)(e) = Limited ≠ Waiver Claw Back Agreements Effective

© 2006 DOAR Privileged and Confidential Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Proposed FRE 502 State and Federal

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Proposed FRE 502 Limited Subject Matter Inadvertent Disclosure ≠ Waiver if you Take Reasonable Precautions Effective Claw Back Agreements 502(a) 502(b) 502(d)(e) To Realize these Benefits, FRE 502 Must be Applicable in Both State And Federal Proceedings

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Interview Verizon Attorneys to Determine Domain Names of the Law Firms Reasonable Precautions and Cost Saving Strategies Electronically Identify and Remove all Sent to and from a Law Firm Presume and Hold for Later Review Option 1 Quick Peek: Active and/or Inactive Option 3 Divide Between Active and Inactive Matters Option 2 Active: Privilege Log Inactive: Keyword Search

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Started with searching for “(brobeck and “electronic documents”)”

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants You can quickly see the first document pertains to document review regarding the litigation

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants You can see the entire document here.

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Use “SHOW SIMILAR” function to identify all other documents regarding same concept.

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants “SHOW SIMILAR” identifies all other documents regarding same concept.

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants A Related Document That Was Identified By The System (5th One on List – Subject: “Status report on Document identification…”)

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Reasonable Precautions and Cost Saving Strategies Proposed FRE 502 Provides Limitations and Protections That Will Allow us to Negotiate Reasonable, Less Expensive, and Less Time Consuming Review Processes

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Reasonable Precautions And Cost Saving Strategies Months Weeks vs.

Copyright 2007 A.Kershaw, PC//Attorneys & Consultants Reasonable Precautions And Cost Saving Strategies $13,598, Federal Rule of Evidence 502 vs.