Prohibiting document reviewers access to data based on their country of origin or citizenship status is fairly common, e-discovery providers say. But while technology will loosen the limitation's burden, in-depth discussions with clients are still necessary to mitigate the risk of discrimination charges and fines.

Oftentimes denying a document reviewer access to data stems from the client requiring reviewers to obtain national security clearance. Relativity discovery counsel and legal education director David Horrigan noted that such a clearance hinges on an applicant being a U.S. citizen. "It happens all the time especially in a place like Washington, D.C., when you have so many matters that require security clearance."

A wide array of public and private entities which are "usually operating under a government regulation" place country-specific restrictions on access to sensitive data, noted Casepoint vice president of client services Jessica Robinson.

She added, however, that most e-discovery software and service providers have controls to block and track data access to ensure the client's requests are met.

Still, while easy to overcome, recent fines should remind law firms and document review vendors that denying document review work based on citizenship can run into issues. Last week, Arnold & Porter Kaye Scholer, legal staffing provider Law Resources and the U.S. Department of Justice agreed to a $56,500 civil penalty over claims the firm and vendor didn't allow an attorney to participate in a document review project because of the reviewer's dual citizenship status.

Under Arnold & Porter's direction, Law Resources screened out U.S. citizens with dual citizenship and non-U.S. citizens with work authorization from the firm's document review project, the Justice Department wrote in a press release. The DOJ said the alleged actions violated the anti-discrimination provision of the Immigration and Nationality Act.

The DOJ also noted that Arnold & Porter "improperly interpreted" the requirements of the International Traffic in Arms Regulations.

"This case involves a single incident where the firm mistakenly provided a third-party vendor inaccurate information about the criteria for selecting contractors for a document review," Arnold & Porter wrote in a statement provided to The National Law Journal. International law firm Clifford Chance also faced similar allegations and paid a $132,000 penalty in 2018.

Despite being a common occurrence for some, managed review and e-discovery provider Update Legal Inc. CEO April Pish said she hasn't seen requests to not place a document reviewer on an assignment because of their country of birth.

"When they are not legally allowed to see data we will push back and have an educated conversation about why the information is not privy to them and why," she said. "Not just, 'Hey I think this may involve international arms [and] there may be documents about it.'"

While Pish agreed there's likely software to segment data access, she noted Arnold & Porter's misinterpretation of the International Traffic in Arms Regulations highlights the need for clarity before limiting project opportunities.

"It should give every agency pause and to investigate why that is being requested, to ensure they're doing the right thing and not making discriminatory decisions based on someone's citizenship," she said.