6 Ways to Decrease Privilege Logging Costs and be More Efficient

Privilege Logs tend to be the more labor-intensive and expensive parts in the discovery process. Would you like to minimize the expense and effort of privilege logging?

Although they are not always mandatory, defining what is withheld and why, is one of the more crucial aspects in the discovery process, if your organization is required to deliver a privilege log.

Compounded by the fact that the Federal Rules of Civil Procedure do not provide clear guidance on logging procedures, this may lead to challenges and increased costs for your business, even if you have an agreed-upon and defined ESI Protocol with the opposing party.

However, all is not lost. By implementing a few strategic practices, you can streamline your privilege logging procedures, reducing both the cost and complexity of the process. Establishing an efficient, well-defined privilege log process will provide your business with peace of mind when dealing with opposing parties.

Keep reading to explore six effective strategies to minimize costs and maximize efficiency in privilege logging, ultimately ensuring a smoother review process.

6 key ways to reduce privilege logging costs

Our legal experts have helped us compile six potential ways to decrease costs of privilege logging, ensuring a more efficient process in which your company won’t be bogged down by overwhelmingly hefty costs and processes.

1. Avoid false privilege hits with these techniques

After you’ve identified what is subject to privilege review, you need to flag down false privilege hits, or “priv” hits. While at first glance, this may appear to be obvious, we can’t stress how many times reviewers were led to believe certain documents were privileged due to false privilege hits.

This includes, but is not limited to, understanding certain individual roles, and how under certain circumstances they differ. It then further involves identifying “like” names that may appear in documents for an individual that does not play a legal role on their own. Understanding roles and key individuals early on can help ensure efficiency.

Starting out on the right foot by crafting Search Term Results (STRs) that make sense and apply to a population of documents is key. This helps in a twofold way:

• Identify documents that are likely privilege or contain privilege information.
• Remove documents that likely do not contain privilege information and shouldn’t be withheld.

You may also be overlapping search terms and not know it. Avoid this by ensuring that your search terms don’t overlap with non-sensitive keywords that may trigger false hits. For instance, “financial data” may overlap with non-privileged but sensitive financial operations, so be as specific as possible about the type of financial data that is privileged.

Additionally, consult with your clients for the historical legal lists that they may already have. Internal lists that exist generally have everyone quasi-associated with the legal department, in which case, you should still vet it further. You don’t want anyone loosely associated with the legal department team to trigger a privilege hit.

2. Dig deeper into the insights of your population

Delving deeper into the insights about your document population early on can save both time and money, while also ensuring a higher-quality work product. Take the time to analyze the documents and terms that are triggering specific populations to fully understand what you're working with.

Do your due diligence by going beyond basic privilege terms and refining them to better target relevant information. This proactive approach will allow you to streamline the process and minimize unnecessary costs.

Parse email addresses and domains early on, as this can assist in culling populations from the get-go. This will also give you a sense of who the potential privileged actors are in your population, along with potential waiver parties and agents. The latter is helpful to know when it comes to who these actors are, as it usually requires going back to the clients to ask questions.

Thus, identifying third parties and determining whether they create waivers or are agents of an organization is key early on. The sooner you can get ahead of that, that is, before reviewers have coded documents with those parties on them, the better suited you’ll be for an efficient privilege logging process.

3. Leverage email threading

Email threading can allow you to group documents from the same conversations together, thereby enabling consistent logging throughout a particular email thread. It may exclude completely redundant thread members as allowed by an ESI agreement.

If you use threading to cull populations, you'll need to consider the impact on decisions on whether to withhold or redact documents for privilege. Email threading will group your documents from the same conversations together, even as a thread splits off. If you don't use it for culling, it's still great for log populations, as it makes for consistent coding among various thread members.

Once threading is complete, you can then organize thread groups together in searches or batches, including those for QA and other workflows based on the results. This way, someone who views Thread Member A can see Thread Member D simultaneously.

Oftentimes people negotiate using threading for culling privilege log populations even where it's not being used to cull an overall review population. It’s possible to negotiate threading as a basis for culling your privilege log population alone, just make sure there is an agreement.

When threading, you do need to recognize the potential impacts on decisions to withhold or redact documents. Some take a heavier handed approach on withholding; this is based on the reasoning that the earlier versions that would have survived email redaction are also in the population, and those should be dealt with separately. But if you threaded your population, those earlier emails likely are suppressed if you used threading for culling.

4. Analyze documents for responsiveness

Not all privilege terms are created equally. Some privilege terms may rise to the level where if there's a hit, you may not want the first line reviewer to have the ability to downgrade the document they’re reviewing.

Ideally, you would want them to analyze those documents for responsiveness. You may, however, depending on how your review is set up, have populations of documents that you know are responsive regardless of the first line reviewer’s opinion of privilege.

These documents could automatically head to a privilege log review, where reviewers with more training on privilege standards for a particular client, can make final privilege logs, assisting in culling costs. Essentially, you are limiting someone having the opportunity to downgrade a document that hits on a highly privileged term and sending it straight to a privilege log workflow for deeper analysis.

5. Apply Technology Assisted Review (TAR)

TAR, or Technology Assisted Review is helpful in the privilege process, and it is built into the Consilio AI Priv process. But keep in mind, it’s not a magic bullet. You can't use TAR to identify what is privileged and what isn't in your population, as it can be used only as a means of assistance.

Instead, TAR grants you another data point to use, to help prevent privilege documents from going out the door. You can use it if there's considerable amounts of over-claiming for privilege. You can also use it to identify documents that are higher level targets for a potential downgrade review.

6. Shameless Plug: Consilio’s New AI Privilege Logging tool AI PrivDetect

Ever the innovators in the legal tech space, we at Consilio have recently launched our own AI tools, which has a Privilege Log component to them. AI PrivDetect is a tool that enables you to wade through the oftentimes lengthy and laborious privilege logging and protection processes.

Using this automation tool simplifies this process, as it pulls metadata on its own. It can autogenerate logs, file names and more. While you’ll need a human to add some contents manually, our AI PrivDetect tool can automate the lengthier bits, such as descriptions.

Making for a much more simplified privilege logging process, this tool will be your helping hand for all your privilege needs. A simplified process will save your organization time and resources, thereby saving you from paying more.

Getting it right: Why we prioritize working alongside legal advisors

Today’s technological advancements in AI and the like have facilitated and eased various actions in the LegalTech space. But it wouldn’t be wise to rely on technology alone. That’s why we implore you to pair any software or digital tools with a seasoned legal expert.

While technology like AI has the power to automate, it is humans that help guide you and are there for you every step of the way in your legal processes. That’s why we suggest pairing any tool, no matter how viable it is, with a trusted legal advisor that will guide you throughout the privilege logging process.

This way, your business does not merely save money but has an expert on hand to assist them whenever they run into any difficulties. It is also there when you have questions that only a human is best equipped to handle accurately.

If you’d like to know how our team of legal experts can help you with privilege logging or any legal needs, let us know.

Excited to get started with our AI Privilege Logging tool?