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Why Privilege Logging Is Still Too Complicated for Full Automation

A panel of e-discovery attorneys gathered during Legalweek 2022 to discuss the challenges of privilege logging, and the limitations—and advancements—of existing software.

PHOTO: Stock

Software is becoming increasingly sophisticated, but the days of 100% automated privilege logging is nowhere near a reality—and shouldn’t be a consideration, according to e-discovery attorneys.

On Wednesday, a panel of Big Law e-discovery attorneys gathered for “The Time for Change Has Come: Streamlining Privilege Review” Legalweek 2022 panel to discuss some of the nuances, challenges and technical opportunities for privilege logging.

To be sure, determining if documents or communications are privileged is typically not an easy or straightforward task, panelists said. Challenges even arise regarding what communications fall under attorney-client privilege, noted K&L Gates e-discovery analysis and technology group partner Rachel Tausend.

“There’s not even one agreement [where] we can all [cite] attorney-client [communications] as privileged, but how that plays out in the U.S. and abroad differs … there’s a lot of disagreement,” she said.

Software is becoming increasingly sophisticated, but the days of 100% automated privilege logging is nowhere near a reality—and shouldn’t be a consideration, according to e-discovery attorneys.

On Wednesday, a panel of Big Law e-discovery attorneys gathered for “The Time for Change Has Come: Streamlining Privilege Review” Legalweek 2022 panel to discuss some of the nuances, challenges and technical opportunities for privilege logging.

To be sure, determining if documents or communications are privileged is typically not an easy or straightforward task, panelists said. Challenges even arise regarding what communications fall under attorney-client privilege, noted K&L Gates e-discovery analysis and technology group partner Rachel Tausend.

“There’s not even one agreement [where] we can all [cite] attorney-client [communications] as privileged, but how that plays out in the U.S. and abroad differs … there’s a lot of disagreement,” she said.

But as privilege logging challenges continue, legal tech companies are increasingly releasing tools to help lawyers efficiently delve into the nuances of a document to determine privilege.

“There are these fairly specialized language algorithms that are looking at all the harder information [and] natural language processing to think of the nuances of language,” noted Pillsbury Winthrop Shaw Pittman litigation partner David Stanton.

Privilege logging software is also available that borrows from technology assisted review, a process lawyers may already be aware of. “One of the things they’re doing is exploring the iterative active learning approach based on a privilege tag,” Stanton said. “There’s a lot of bells and whistles coming out, but [using] the TAR approach goes surprisingly well,” he added.

Technology can also quickly eliminate the emails and communications that plaintiffs and defendants easily agree aren’t relevant and shouldn’t be privileged, added King & Spalding e-discovery project management and technology partner and director Rose Jones. “They are the easy ones that may hit on a search term but you can exclude,” she noted.

But before any additional software or process is leveraged, risks need to be addressed to gain buy-in from clients, the panelists noted.

“There’s a gap between the legal and tech and sometimes it’s tough to get buy-in, but you really have to test it [to get the buy-in],” Jones said.

Clients’ concerns can also be assuaged by lawyers confirming that human reviewers are required components of any tech-based privilege logging process, Stanton added.

“They [software] can identify a group of documents you can push out the door with very little concern. I think what they do with your potentially privileged documents varies,” Stanton said. He added, “When you get to the body of documents that are privileged, I think the systems are generally built around there will be human review.”

Indeed, while technology can greatly improve and assist privilege logging, it will never erase the need for human review, added Kirkland & Ellis partner Michelle Six.

“I don’t see how you entirely move away from a human review of documents in connection with the privilege log,” she said. “The reason is that we are culpable, vulnerable and we lie. We are honest [but] we lie. … Human beings are a necessary entity to look over what someone has said and read between the lines.”

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PHOTO: Stock

Software is becoming increasingly sophisticated, but the days of 100% automated privilege logging is nowhere near a reality—and shouldn’t be a consideration, according to e-discovery attorneys.

On Wednesday, a panel of Big Law e-discovery attorneys gathered for “The Time for Change Has Come: Streamlining Privilege Review” Legalweek 2022 panel to discuss some of the nuances, challenges and technical opportunities for privilege logging.

To be sure, determining if documents or communications are privileged is typically not an easy or straightforward task, panelists said. Challenges even arise regarding what communications fall under attorney-client privilege, noted K&L Gates e-discovery analysis and technology group partner Rachel Tausend.

“There’s not even one agreement [where] we can all [cite] attorney-client [communications] as privileged, but how that plays out in the U.S. and abroad differs … there’s a lot of disagreement,” she said.

Software is becoming increasingly sophisticated, but the days of 100% automated privilege logging is nowhere near a reality—and shouldn’t be a consideration, according to e-discovery attorneys.

On Wednesday, a panel of Big Law e-discovery attorneys gathered for “The Time for Change Has Come: Streamlining Privilege Review” Legalweek 2022 panel to discuss some of the nuances, challenges and technical opportunities for privilege logging.

To be sure, determining if documents or communications are privileged is typically not an easy or straightforward task, panelists said. Challenges even arise regarding what communications fall under attorney-client privilege, noted K&L Gates e-discovery analysis and technology group partner Rachel Tausend.

“There’s not even one agreement [where] we can all [cite] attorney-client [communications] as privileged, but how that plays out in the U.S. and abroad differs … there’s a lot of disagreement,” she said.

But as privilege logging challenges continue, legal tech companies are increasingly releasing tools to help lawyers efficiently delve into the nuances of a document to determine privilege.

“There are these fairly specialized language algorithms that are looking at all the harder information [and] natural language processing to think of the nuances of language,” noted Pillsbury Winthrop Shaw Pittman litigation partner David Stanton.

Privilege logging software is also available that borrows from technology assisted review, a process lawyers may already be aware of. “One of the things they’re doing is exploring the iterative active learning approach based on a privilege tag,” Stanton said. “There’s a lot of bells and whistles coming out, but [using] the TAR approach goes surprisingly well,” he added.

Technology can also quickly eliminate the emails and communications that plaintiffs and defendants easily agree aren’t relevant and shouldn’t be privileged, added King & Spalding e-discovery project management and technology partner and director Rose Jones. “They are the easy ones that may hit on a search term but you can exclude,” she noted.

But before any additional software or process is leveraged, risks need to be addressed to gain buy-in from clients, the panelists noted.

“There’s a gap between the legal and tech and sometimes it’s tough to get buy-in, but you really have to test it [to get the buy-in],” Jones said.

Clients’ concerns can also be assuaged by lawyers confirming that human reviewers are required components of any tech-based privilege logging process, Stanton added.

“They [software] can identify a group of documents you can push out the door with very little concern. I think what they do with your potentially privileged documents varies,” Stanton said. He added, “When you get to the body of documents that are privileged, I think the systems are generally built around there will be human review.”

Indeed, while technology can greatly improve and assist privilege logging, it will never erase the need for human review, added Kirkland & Ellis partner Michelle Six.

“I don’t see how you entirely move away from a human review of documents in connection with the privilege log,” she said. “The reason is that we are culpable, vulnerable and we lie. We are honest [but] we lie. … Human beings are a necessary entity to look over what someone has said and read between the lines.”

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