David R. Cohen, Reed Smith

Litigation document review can be one of the most time-intensive parts of litigation, and comprises a large part of the work performed by many thousands of attorneys, across the U.S. and beyond. Yet, there is little guidance available to help attorneys navigate the ethical dilemmas they may encounter during the document review process. The purpose of this article is to provide attorneys engaged in e-discovery document review—and the attorneys who supervise them—with suggestions for sound and ethical decision-making practices.

Most litigation reviews of client documents are focused on two primary decisions about each document encountered:

• Is the document relevant/responsive? And, if so,
• Is it protected by attorney client privilege, the work product doctrine, or any other applicable privilege or protection that would exempt it from production?

Of course, review attorneys are also often asked to make other decisions such as issue or confidentiality classifications. The decisions concerning responsiveness and privilege, however, tend to have the greatest ethical implications because those decisions determine which documents adverse parties will see and, therefore, whether the producing parties are fulfilling their legal and ethical production obligations.

Document review raises interesting ethical issues partially because it is an area where attorneys must balance sometimes conflicting duties.  On the one hand, an attorney has a duty to be an advocate for her client. See Model Rule of Professional Conduct (MRPC) 3, comment 1.  On the other hand, the attorney also has a duty not to conceal evidence that should be produced. See MRPC 3.4(a). How should attorneys handle documents that fall into gray areas—where parties acting in good faith might disagree as to relevance or privileged status?

In the case of relevance determinations, you should generally err on the side of production of “gray area” documents that are encompassed by appropriate document requests or may be subject to mandatory disclosure obligations. If the documents were truly irrelevant, the client would usually have nothing to lose by producing them. Conversely, the more that you or the client care about withholding the “gray” documents, the more likely that their relevance is not so “gray.”

Decisions on privilege calls, however, may be more complicated. For example, there may be an otherwise relevant and responsive email communication where business counsel at a company is copied as a recipient, but is not explicitly asked for legal advice. Is the copy to outside counsel an implicit request for review and advice? Depending on the content and context, arguments may be made on both sides of that issue.

To avoid inadvertent production of privileged documents, many primary reviewers are instructed to err on the side of classifying such documents as “privileged pending further review.” There is nothing wrong with that, as long as the overall process includes secondary review and removal of privilege tags for documents that don't meet all privilege criteria; but what if you are the attorney ultimately responsible for the final privilege decision and you think that 6 out of 10 judges would rule the document non-privileged? Should you claim privilege?  Consistent with MRPC 3.1, you may reasonably conclude that you owe a duty to your client to make arguments that have a 40 oercent chance of succeeding. Considering your additional role as an officer of the court, however, you should avoid withholding documents based on privilege arguments that would have a much lower chance of succeeding. See MRPC 3.3(a)(1). Even aside from the ethics rules, you should not make any privilege or responsiveness determinations that you would be embarrassed to support in front of a judge or special master looking at the document—because some day you may be put in precisely that position.

The receiving party might not know to challenge any particular privilege determination, but if the privilege log reveals a high proportion of documents withheld on questionable grounds, then a privilege challenge may follow. Proportionality factors also come into play as well, because much time and money can be wasted on privilege battles and rarely will a case outcome turn on a few close calls, particularly when there are numerous other non-privileged documents that have been produced, among other sources of discoverable information.

It is one thing if you are one of the lawyers ultimately responsible for discovery in a case, but what if you are one of the many thousands of review lawyers taking instructions from case team lawyers on rules for making responsiveness or privilege determinations?  What if you are given instructions that, you believe, are incorrect based on the case facts or applicable law?  If you are a licensed lawyer in the U.S., you have an ethical duty, under MRPC 3.4(a), (or the corresponding rule in your jurisdiction), not to conceal evidence that should be produced and, under MRPC 1.6(a), not to produce client confidential information that should be withheld.  Those ethical duties override any contrary instructions from your superiors.

To cover yourself and your ethical obligations in such circumstances, remember the acronym “COVER.” The “C” in “COVER” stands for “Communicate.” If you are part of a review team, talk to other members of your team to see if they share your concern or if they are aware of reasons why your concern may be unfounded. If you are working on an individual review, talk to your supervisor to ensure that you understand the instructions and supporting bases. If the correct answer may turn on any factual or legal issues, fully research those issues.

The “O” in “COVER” stands for “Object.” If the communication does not persuade you that there is a correct, or at least reasonably defensible, basis for the instructions you are being given, and if your research confirms that your contrary position is correct, then you need to articulate your objection to the instruction and the reasons for that objection. Raise your objection thoughtfully, tactfully, and orally in the first instance, to avoid making the situation more confrontational than necessary—this is not the time (at least not yet) to get on your high horse and accuse your superiors of ethical shortcomings. Instead, diplomatically educate your superiors about what your research has disclosed about the tricky and often misunderstood nuances of the law of privilege, or whatever else they may be overlooking.

The “V” in “COVER” stands for “Verify.” Hopefully, your original communication and tactful objection will have resulted in satisfactory resolution of the issue. However, if the decision or instructions are not corrected, and you have not been persuaded of their defensibility, it is time to verify in writing the instructions and seek answers to your questions about those instructions. The communication should be treated as highly confidential and privileged, and should be directed, in the first instance, only to the supervisor or case team members responsible for the document review. Be respectful in tone and discrete in approach, but frame the issue as simply and clearly as possible. Enlist other team members, or better yet, a review team supervisor, to carry or help carry the torch. Being faced with multiple objectors, or seeing the issue raised in writing, may cause the ultimate decision-makers to reconsider their instructions, or at least to better explain or support their rationale.

The ”E” in “COVER stands for “Escalate.” If the verification step did not result in a satisfactory resolution, and you still feel strongly that the wrong call is being made, it is time to escalate the issue to “higher authority.” Most large law firms have partners in charge of discovery operations, internal counsel, and ethical ombudsman, to whom ethical concerns may be raised. Those folks tend to be on the more senior side and have both the judgment and the internal clout to address and help to remedy such ethical issues, before they evolve into worse issues. If you have no higher authority to turn to at the law firm, most local bar associations have ethical hotlines you can contact to get confidential advice on ethical issues, without revealing client identities or confidences.

Finally, the “R” in “COVER” stands both for “Remove” and “Report.” If you are convinced that ethical rules are being violated, and all of your reasonable efforts to avoid or correct the violation have proven fruitless, then you need to remove yourself from complicity in the situation. Ask to be excused from the assignment due to your fundamental disagreement with the instructions; and consider your obligation to report professional misconduct under MRPC 8.3(a) or its counterpart in the applicable jurisdiction.

Following your ethical obligations as a lawyer is not always easy. However, if you wanted easy, or always simply to follow instructions, you would not have become a lawyer. You are trained to analyze complex issues, flexibly consider opposing points of view, competently deal with difficult situations, and effectively advocate for what is right. This is the time to employ that training. Being true to your profession and your ethical obligations is not always the easy course, but it is always the right course!

David R. Cohen is a partner at Reed Smith, where he leads the firm's 85-lawyer records & e-discovery (RED) practice group. He has over 35 years of experience in litigation, serves as e-discovery counsel for a number of companies, and has also been appointed as an e-discovery Special Master in multiple cases.