Note: This is the first in a series of posts about protecting documents that are subject to attorney-client privilege. Future posts will cover such issues as creating privilege logs, avoiding doc-by-doc privilege review using categorization approaches, searching for legal terminology, and privilege searching as part of quality control. We will also comment on interesting legal opinions that interpret FRE Rule 502 and related issues.

When I first began doing e-discovery consulting, one of my first projects was to take a list of 4,000 attorney names provided by a corporate client to set them up in Power Search, our batch searching program. I spent quite a bit of time testing various alternative searches, and developed rules as to the best approaches to find attorney names in order to tag them as potentially privileged.

Following Victor Stanley v. Creative Pipe, 250 FRD 251, 2008 WL 2221841 (D.C. M.D. 2008), and the adoption of Federal Rule of Evidence 502, an attorney must have a documented and formalized way of searching for potentially privileged documents.

We now manage a list of 2,000 firms and almost 6,000 attorney names for document upload for every case we handle for a large corporate clients.

Here is how we do it:

NAMES

We recommend searching both the document text and the metadata using the following approach:

• If the person does not have a unique first or last name, search for (firstname or nicknames or FirstInitial) NEAR/2 LastName. Including the first initial find more documents, but also more false positives, so whether to use it is a judgment call.

• If the person has a unique last name, then just search for the last name. Qualifying it with first name will just miss documents in which the person was referred to by last name alone.

• Similarly, if the person has a unique first name, just search for the unique first name, and also search for the first initial near last name, like this: Firstname OR (FirstInitial near/2 Lastname). If both names are unique, search for each separately.

• Search for all forms in which the names may appear, including typical misspellings. For example, if the person’s name has a space or punctuation in it (or if your search engine treats punctuation as a space), you would search for (O’Hara or Ohara).

• Remember that a letter with an accent is a different Unicode character than a Unicode character without the accent, so if the name has an accent, search for it both ways. For example, you may need to search for (Göthe or Goethe) or for (Jose or José).

• If an attorney (usually a woman) changes her name with a change of marital status and uses both her maiden name and married name, such as Susan Jones Smith, be sure to search for her first name(s) Near/2 (Jones or Smith). If you just search for “Jones Smith,” you will miss her earlier communications.

Frequently firms will send us a list of names that include nicknames instead of formal first names, such as “Skip Jones.” If the client sends us “Mike Smith,” we will search for Mike or Michael. But we have no way of knowing how to search for the formal name of “Skip,” so take the extra time to find out the formal names of all of the attorneys on the list.

EMAIL ADDRESSES

Make the extra effort to get the email addresses of the attorneys and legal staff. Frequently we receive a list of names without email addresses. Searching for the law firm domain names will catch most of the law firm attorneys, but not necessarily in-house counsel or use of other domains by attorneys and staff, such as emails from Blackberry addresses or Gmail.

If we do not have the email addresses, we will often search for first initial plus last name, such as “RJones” for Robert Jones, or whatever convention the law firm or company uses for email addresses.

FIRM NAMES

Searching law firm names and domains is generally straightforward.

• If the firm name or domain has changed, be sure to search for all versions.

• Search for the smallest number of significant words that will find the firm. That is, when searching for Skadden, Arps, Slate, Meagher & Flom, LLP, you’ll find more if you leave off the “LLP,” more still if you just search for “Skadden Arps”, and more still if you just search for “Skadden.” We always leave off the LLC or PC, and usually just search for the first two names of multiple named firms.

POPULATING THE REVIEW FORM

To aid the reviewers, we often create a field called “PrivilegeTerms” on the review form and populate it with the terms that hit on the privilege search. That makes it easy for the reviewers to see why the document was tagged as potentially privileged.

SAMPLING

After you have tagged the documents as potentially privileged, you should generate a hit report by name and look for terms that seem unreasonably high, and sample those for false positives. In one case, for example, the name of an attorney in Cleveland was the same as the name of an important engineer in a patent case, and had so many hits that it jumped out. Sampling those documents easily found the false hits so that we could figure out the best way to search for just the attorney.

Also, per Judge Grimm in Stanley Pipe, of course you should also sample the documents that did NOT hit on the searches if the review is not a document-by-document review in which the attorneys will be reviewing each document.

CONCLUSION

Over time, trial and error, we have found these to be the best approaches to find attorney names in potentially privileged documents. We welcome your feedback and any suggestions you have for alternative approaches.