Document Review in Litigation and Investigations

What is written is fundamental to the Phoenix business laws, so obviously document review is crucial in the litigation process. It is a key to the discovery process. According to KPMG, first level document review can be anywhere from 58 to 90 percent of the total litigation cost. Doing it right is crucial to a successful outcome. Failing to notice a significant document may result inadvertent disclosure of a privileged document or a significant document only showing up at a deposition. Getting it right, particularly with data rich electronic information requires training and understanding of the basic guidelines.

Counsel’s Duty of Supervision
A Phoenix business lawyer has the legal duty to ensure document productions are both precise and complete. They must be clearly and accurately labeled, and organized in comprehensible way. Counsel should routinely review the business or project manager's (commonly called ESI) quality control procedures.

Information-Gathering Stage
Before you begin the extensive and costly document review, you need to be clear what you are looking for, specifically the type and object or goals of the case. Once counsel has established what they are looking for, counsel needs to establish where they are looking for it: in-house documents and hard drives, external documents or online/wireless communications etc. Finally, counsel needs to establish how they want the data processed. Counsel should review this strategy with the chosen ESI vendor.

Choosing the ESI Vendor and TTS Team
Just as a strong litigation team is needed for a successful outcome so is chosing a strong team of Phoenix business law attorneys and paralegals for document review. Choose the ESI vendor based on experience, staffing capabilities, flexibility for changing project needs, and the ability to acquire and retain talented staff, even on short notice. Be sure their staff has the talent, legal certifications and experience in both document review at large and your subject in particular.


Introducing the Team to the Matter and Training Them
Speed dating may be fun and instructive but not when it comes to document review. Counsel and the document review team need time to get acquainted and establish sound communication techniques.
All legal professionals who will be part of the document review need training, though it is best to wait until the documents are actually reviewed. They need a thorough explanation of the review tool being used. Additionally, it is essential that they are able to sort what is responsive to discovery and what is not. Checklists, discussing specific documents as examples and appropriate analysis are quite helpful in this end. 

Second-Level Review
It is important that all documents not only be reviewed by trained reviewers but that samples of the documents be given to experienced senior level project managers to ensure accuracy. This way if there are widespread issues of miscoding, they can be caught and corrected. Additionally, it is advisable that a manager review all documents marked privileged as well in order to ensure that privilege is applied consistently and correctly.
Planning, planning and more planning make the successful document review. Only then will everyone involved feel confident that the documents provided are correct and complete. During the litigation process, the litigation team may feel like they are drowning in paper, but incorporating these key ideas can act as a lifeline.

This article brought to you by the Phoenix business law firm of Law Office of Donald W. Hudspeth, P.C. 866-696-2033.

SYNOPSIS

What is written is fundamental to the Phoenix business laws, so obviously document review is crucial in the litigation process. A Phoenix business lawyer has the legal duty to ensure document productions are both precise and complete.

The Law Offices of Donald W. Hudspeth, P.C.

Business Law, Commercial Litigation & International Business Law

www.AZBUSLAW.com – TheFirm@azbuslaw.com

“The Business of Our Firm is Business”

Attorney-Client Privilege for Transactional Attorneys

Attorney-Client privilege is a particularly tricky issue for attorneys who handle business transactions in Phoenix, as they so often have clients for both legal and non-legal services. A client who requires legal services is protected by quite strict attorney-client privilege ethics rules. However, a client who is provided strictly non-legal services cannot be protected by attorney-client privilege. The ambiguous part comes when a client uses both legal and non-legal services. Transactional attorneys repeatedly face this situation.

The Rules

• A lawyer may not act unfavorably to a current client.
• A lawyer may act unfavorably to a former client only if the new issue is clearly unrelated to the issue the lawyer previously handled.
• A conflict that affects one member of the firm affects all members in the firm.
• A client may waive conflicts if provided proper disclosure and consent. The court usually takes the client’s expected level of sophistication and understanding into account when judging the validity of waivers.

Legal vs. Non-Legal Services

If a lawyer advises on both legal and non-legal matters, it is important to establish what communications will be covered under attorney client privilege and what will not. Attorneys should discuss with the clients the nature of advice they are seeking and warn clients when discussions are not protected. Additionally, transactional attorneys should acquaint themselves with the particular provisions of privilege in their state, as these may differ.

For courts to consider communications privileged the “dominant purpose” of discussion must be about legal matters—and unable to be provided by a non-legal agent. As an example, advice on business strategies is not protected but questions on what structure to form that business would.

Accidental Clients

Transactional attorneys are much more likely to acquire “accidental” clients, who will also be covered by attorney-client privilege, making attorney-client privilege much more difficult to navigate.

The clients of transactional attorneys often represent not simply people but entities—corporations, trade associations and syndicates. Therefore, more than the single individual in contact with the lawyer may be harmed by a breach of attorney-client privilege. It is crucial for a transactional attorney to establish who is actually a client, and if they receive legal or non-legal services.

Please note: attorney-client relationship can be established without the presence of an engagement letter or a fee-paying arrangement. Simply providing legal advice, receiving confidential information or otherwise treating the entity as a client can establish that relationship.

To avoid accidental clients, a letter of engagement from the client stating both who is a client and who is excluded (such as affiliates, parents, subsidiaries etc.) limits the chance of a lawsuit. However, such a letter should be sent to the non-client entities to ensure their consent.

Joint Representation

Another grey area that transactional attorneys often find themselves in is the issue of joint representation. Transactional attorneys may represent multiple clients in the same legal matter. Each client is owed zealous representation so problems may arise where there is significant disagreement. While frank discussions may be expressed, where there is “fundamental antagonism” between clients, a lawyer must withdraw representation. It is the responsibility of the attorney to validate that the partners are in agreement of their goals. 

When times are good, clients rarely worry about violations of attorney-client privilege. However, when investors lose money, they are quick to blame their transactional attorney whether the financial loss was related with any ethical missteps on the part of the attorney or not. Taking the time to establish conflicts ahead will save transactional attorneys much heartache and financial problems. 

This article brought to you courtesy of the Phoenix business law firm of The Law Offices of Donald W. Hudspeth. To contact the Phoenix business transactions attorneys, call 866-696-2033

SYNOPSIS

 Attorney-Client privilege can be an issue for attorneys in business transactions in Phoenix. Business firms in Phoenix explain the ambiguity between both legal and non-legal services.

The Law Offices of Donald W. Hudspeth, P.C.

Business Law, Commercial Litigation & International Business Law

www.AZBUSLAW.com – 866-0696-2033 - TheFirm@azbuslaw.com

“The Business of Our Firm is Business”