Earlier this year, an interesting dispute arose regarding search and privilege logs in a case against ConAgra.
The defendants objected that the keywords used by a Special Master to create a 43,211 document privilege log on behalf of a bankruptcy trustee were too broad. Specifically, the defendants argued that the privilege log was created using search terms that weren’t precise enough and hadn’t been established by the plaintiffs as privileged. Because of the imprecision, the defendants alleged that the privilege log was likely to contain a large number non-privileged documents (or false positives). To support their case the defendants cited Fed. R. Civ. P. 26(b)(5)(A)(ii), which requires a withholding party to “describe the nature of the documents” enough to allow other parties to determine the fairness of the withholding.
Ultimately, the Special Master got involved to help resolve the defendants’ objections. To determine the effectiveness of the privilege screen, the Special Master reviewed a “statistically significant number of randomly selected documents.” The Special Master concluded that 73% of the search terms were reasonably precise, but only 31% of the documents contained actual privileged information. The recommendation was that the less precise terms be removed in order to “tighten the screen.” Removing the terms increased the effectiveness of the screen increased to 87%. The Defendant’s objections to the Special Master’s privilege log were overruled and the Court completely accepted Special Master’s Report and Recommendation.
Depending on how the review was performed, technology-assisted review (TAR) could have been very helpful for identifying the privileged documents with greater accuracy than keywords.