Electronic Data Records Law | How to Win E-Discovery

Crowdsource E-Discovery Evidence

Professional Confidentiality and Privilege in an Investigation

CrowdFlower is a young company that engages armies of Internet workers to perform repetitive tasks, in exchange for small per-task fees or rewards.  For example, CrowdFlower workers might one-by-one evaluate tens of thousands of Twitter tweets that mention the brand name of a corporate client.

CrowdFlower believes its services could help assess large quantities of e-documents in an investigation, such as a lawsuit or inquiry by a government regulatory authority.  For example, in response to a subpoena from the federal Financial Crisis Inquiry Commission (FCIC), investment banker Goldman Sachs unloaded a billion (!) pages of legal records on the government.  CrowdFlower offered its services. It offered to deploy an army of virtual workers to sort the records. 

That offer caught my attention, because I see that the quantities of records in modern investigations are skyrocketing.  I agree with CrowdFlower that crowdsourcing could become an important tool of e-discovery and electronic records management.

Therefore, I inquired whether CrowdFlower could demonstrate its technology at the SANS Institute’s September 27-28, 2010, Las Vegas Summit on E-Records Policy.  The company responded favorably, and it has teamed with an eDisovery vendor to assist with the demonstration.  Then it asked me how to assemble a presentation.

The answer is that I don’t entirely know yet.  So I’m blogging here, to solicit input from you, my reader.

My guess is that CrowdFlower could do this:  It could gain access to a large group of sample records, such as government records from someone like the Sunlight Foundation.  Then, it could devise a survey of the records for its worker army to complete.  Before CrowdFlower presents at the Summit, it could begin the survey and compile/analyze results.  Then, in its Summit presentation, CrowdFlower could explain the results, and even demonstrate . . . live . . . how its worker army is continuing to survey the records.

CrowdFlower is not the only company engaging legions of Internet workers.  CrowdFlower’s distinguishing secret sauce is its quality-control technology (algorithms and procedures) for filtering and evaluating worker activities so that one can have confidence in the overall results of a work project.

As a lawyer who cogitates on the future of e-discovery, I can imagine the use of crowds to sift through massive volumes of records in lawsuits.  However, such records often need to be kept confidential.  To achieve confidentiality (and perhaps even the protected status of attorney-client privilege and attorney work product), I envision someone like CrowdFlower enlisting large numbers of professionals who have an ethical duty of confidentiality and/or a reputation for confidentiality.  Such professionals might be (a) licensed (credentialed) professionals such as lawyers, paralegals or certified public accountants, or (b) other people who have a track record for trustworthiness.

Dear Reader:  What do you suggest that CrowdFlower do at the SANS E-Records Summit (Las Vegas)?

Crowdflower's demonstration will be a highlight of the Summit.

--Benjamin Wright, Senior Instructor, SANS Institute

Lawyer-Swarm   I have an update on the crowdsourcing ideas I expressed above:  In the Lehman Brothers bankruptcy, investigators have reviewed astronomical numbers of electronic records such as email and instant messages -- the equivalent of 34 million pages of paper!  How did they do that?  They swarmed the records.  The law firm leading the effort, Jenner & Block, hired "teams of contract lawyers to comb through the pages."  "Lehman Brothers: how investigators sift through e-mail," Financial Times, July 22, 2010, p. 10 (US edition).

Attorney-Client Privilege | Work Product

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Computers can influence the legal posture of an internal investigation.

Two legal doctrines can shield investigation-related communications from disclosure in court or in pre-trial e-discovery.  The first doctrine is attorney-client privilege, which ensures that communications between an attorney and his client remain confidential. The second doctrine is attorney work-product, which prevents disclosure to adversaries of materials prepared by an attorney for a client in anticipation of litigation.

The scope of these two doctrines can be controversial in particular cases.  Often, courts hold that records of a routine internal audit (or business audit) within an enterprise are not protected by either doctrine, even though a lawyer may have been involved or litigation may have been one of the reasons for the audit.  Edna Selan Epstein, The attorney-client privilege and the work-product doctrine, Volume 1, page 356 et seq.

The division between a mere internal audit, on the one hand, and a protected communication or record, on the other, can be open to interpretation.

That interpretation can be influenced by labels, notices and designations.  A tag or notice on a report declaring that it is protected can help persuade a court that in fact it is entitled to protection.  Example: “Confidential. This record is protected attorney-client communication and attorney work product to formulate legal advice in preparation for dispute.”

Privilege

According to a leading legal commentator, a notice declaring attorney-client privilege is “like chicken soup” for an illness. Though it's not guaranteed to succeed as a self-fulfilling declaration of legal status, it might help and normally won't hurt.  Edna Selan Epstein, The attorney-client privilege and the work-product doctrine, Volume 1 , 2007, page 877. 

Such a notice tends to show the belief, mindset and intention of the parties at the time, all critical factors in determining whether the privilege exists in a given situation.  "The professional relationship for purposes of the privilege hinges upon the belief that one is consulting a lawyer and his intention to seek legal advice.” Wylie v. Marley Co., 891 F.2d 1463, 1471 (10th Cir. 1989).

Liberal posting of labels, notices and designations is easier with computer technology.  Computers can facilitate the recording of investigative activities like meetings and interviews – in such a way that the proceedings are labeled as protected.  For example, a meeting can be held by video conference, online text forum or virtual meeting space, where all activities are recorded and a banner reads, “Confidential. This is protected attorney-client communication and attorney work product to formulate legal advice in preparation for dispute.”

Computer video enables easy recording of in-person meetings, where displays of the meetings distributed to participants show the protection banner.  (Some might call the placement of such a banner on a video display an example of augmented reality.  Wired Magazine suggests that tablet computers like iPad will become like windows on the world, where, for instance, users prop them up in a live meeting to record it and see the banners and other augmentation that enrich the experience.  Steven Levy, “Tabula Rasa: Why the new generation of tablet computers changes everything,” Wired, April 2010.)

Work Product

The absence of a lawyer's participation in the preparation of a report reduces the likelihood a court would consider it an attorney work product.  Edna Selan Epstein, The attorney-client privilege and the work-product doctrine, Volume 1, page 918. The reason is that the work product doctrine is intended to prevent disclosure of the lawyer's thinking, and nothing more.  The earmark of a report containing a lawyer's thinking is her participation in the creation of it.

Substantive involvement of a lawyer in the creation of a report is easier and less expensive with computer communication.  For instance, computer communication allows a remote lawyer to peer in on a meeting via video; he might be observing and occasionally commenting from a small window opened on his desktop monitor while he simultaneously attends to other projects.  Computers can allow a distant lawyer periodically to review the activities of an e-discovery specialist as she searches through email archives.  This video demonstrates a remote lawyer participating in an interview via webcam on his laptop:

  Technology allows logging of the specifics of a lawyer's active participation (e.g., lawyer viewed at x time, submitted comment or instruction at y time), together with a banner showing belief and intention that the report is attorney work product.

–Benjamin Wright

Attorney Wright teaches the Law of Data Security and Investigations at the SANS Institute.

Update 2013: An experienced trial lawyer advised me that normally you would not want to claim privilege and work product in the same record.  The record is subject to either one or the other but not both.  If you claim both a court might conclude you did not pecisely apply either the privilege doctrine or the work product doctrine.