Search Costs in E-Discovery and E-Disclosure
Does the cost of filtering attorney-client communications from legal disclosures justify a policy of skimpy retention of email?
To understand that question, we need background: If an enterprise possesses records, it must be prepared to disclose them when required to do so by law. Disclosure entails effort to find and compile the relevant records. If the records are paper, the searching and compiling are performed manually. But if the records are electronic, automated methods for searching and compiling may be available.
For records of electronic mail, modern archival technology enables easy searches, even if the number of records is large. Search engines can make finding/compiling records rather low cost. From a policy perspective, those low costs help to justify more complete and lengthy retention of e-mail within an enterprise.
But wait. Some say those low costs are offset by the expense of screening out attorney communications when law requires that the enterprise disclose records.
Is that true? Let’s analyze the topic.
When the owner of e-mail records such as a public agency must release records under e-discovery or freedom of information act (FOIA), the owner may normally withhold those records protected by attorney-client privilege. Why? The law wants to encourage open communication between counsel and client and to enable lawyers to create work product outside the scrutiny of adversaries.
Given this right to withhold, a record holder naturally wants to cull out any protected attorney communications before it discloses records. If performed manually, this detection and sifting can involve much time and expense. Some therefore argue the holder would have been wiser in the first place not to have retained the records. They advocate deleting e-mail records as soon as possible. If the holder does not possess the records, they say, the holder avoids the eventual cost of filtering out the protected records.
That argument, however, ignores how rapidly search engines are advancing. Advanced search engines employing artificial intelligence and other techniques can (so their promoters claim) outperform lawyers when examining copious records. See, Daniel Fisher, “The Data Explosion,” Forbes, October 1, 2007. I courageously predict search engine advances will accelerate as better search methodology and algorithms are developed.
As search technology improves, the need for expensive, manual screening for protected communications diminishes.
Sure, search engines can make mistakes. A lady from a government agency reminded me that if a privileged e-mail slips out in a FOIA disclosure, the law provides no way to claw it back. So her agency tediously examines e-mails before divulging them.
My reply: people make mistakes too. Moreover, the risk of an occasional privilege slip-up is small reason for a government agency to adopt a policy of early e-mail destruction. While I respect the agency’s need for confidentiality with its lawyers, many other considerations suggest the agency is wise to keep generous electronic mail records.
Another point: is it really in the public’s interest for a government agency to place colossal emphasis on protecting its lawyer records?
As the costs drop for implementing pretty-good automated measures for screening out protected records, the argument for minimizing the size of email archives drops too.