Protecting confidentiality can be a challenge for attorneys when someone outside of the firm needs to review data in a review database. Questions they’ll typically consider: How can a court rule on communications claimed privileged? How will an expert review a litigation support database to prepare a report without seeing any attorney work product, arguably requiring the disclosure of protect attorney mental impressions? How can a court appointed expert help one side with privilege review and then share non-privileged information with the other party?
In Dyson, Inc. v. SharkNinja Operating LLC, Judge Susan E. Cox ordered the Defendant SharkNinja to produce documents previously withheld on privilege claims for “in camera” review. Latin for “in chambers,” during an in camera review, a judge reviews evidence, or conducts a hearing, in their private chambers away from the jury or public eye. In this case, the judge sought to determine whether there had been over-designation of communications by the defense as privileged.1
The Court conducted in camera review on samples of the communications identified in the Defendant’s three separate privilege logs. The second privilege log contained 56 communications, of which the Court found 27 of the communications were properly designated as protected by the attorney-client privilege. Other communications were found not to be privileged, such as for email messages without any attorneys on the email chains that discussed technical issues for vacuums, or others where an attorney was included on the email, but did not discuss any legal issues.
The Court conducted review of emails and attachments. While the opinion is silent on what was provided to the Court, one option was to provide PDFs of the data for the Court to examine.
Another option for larger cases is to use Everlaw “Projects.” This feature allows attorneys to share challenged, privileged communications with a judge directly for in camera review. A judge can even enter a ruling on each claimed privileged communications directly in the review application. Anything that is not privileged and responsive can then be shared with the requesting party.
An administrator can create a “Project” from a subset of discovery in the database. In the above case, data was withheld on the basis of the attorney-client privilege. If a court ordered challenged discovery for in camera review, the first step is for a project manager to create a Project from Case Settings.
The second step is for an attorney or project manager to run a search for the responsive discovery that had been coded as privilege.
From the results table, the communications claimed privilege could then be added to the In Camera Project from the Export button.
The judge can then be added to the new Project for their review of disputed privileged communications. Issue coding can be added to assist the judge in ruling on the communications, with issues coding such as “Privilege,” or “Not Privilege,” which can then be exported out for the court’s ruling.
Projects are an effective way to share information for review without disclosing any attorney work product, especially in cases with a large number of communications. Projects can be used in a similar manner for qui tam actions under the False Claims Act if a court has to rule on the admissibility of ESI or for expert witnesses to prepare a report.
1Dyson, Inc. v. SharkNinja Operating LLC, 2017 U.S. Dist. LEXIS 52074, at *1 (N.D. Ill. Apr. 5, 2017).