the real cost of privilege review patrick oot, esq. - verizon, director of electronic discovery and...
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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
1st Tier ReviewerContract Attorney $50/hr
2nd Tier ReviewerStaff Attorney $150/hr
Outside Counsel Final Privilege Call
Associate $350/hr
Copyright 2007 A.Kershaw, PC//Attorneys & Consultants
2,403,299 Million Documents
1.3 Terabytes
Documents Were Collected From 83 Employees
In 10 States
Case 1: A Recent Dept. of Justice 2nd 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 2nd 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
$5,480,854Outside Counsel
1st Tier Review $2,295,144.21
$7,775,998.21
Copyright 2007 A.Kershaw, PC//Attorneys & Consultants
Final Expense of Relevance Review at Law Firm 2
$4,074,634.40Outside Counsel
1st Tier Review $1,748,240.00
$5,822,874.4
Copyright 2007 A.Kershaw, PC//Attorneys & Consultants
The Cost of Protecting Privilege Without FRE 502
$7,775,998.21Law Firm 1
Law Firm 2 $5,822,874.40
$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 AgreementsEffective
Copyright 2007 A.Kershaw, PC//Attorneys & Consultants
© 2006 DOAR Privileged and Confidential © 2006 DOAR Privileged and Confidential
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 Email 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 LogInactive: 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
$13,598,872.61
Federal Rule of Evidence 502
vs.
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