I’ve spent more than my fair share of time in the document review mines. I know that mistakes happen; after all, those reviewing the documents (or those programming the AI) are only human. But sometimes that mistake is so large and potentially harmful to your client that it’s worth it to examine — as a cautionary tale — what exactly went wrong.
First, the details: Angela Turiano, of Bressler, Amery & Ross, represented Wells Fargo, responding to a third party subpoena in a case between two financial advisors who also happen to be brothers. Seems easy enough, but in fact Turiano produced documents without redaction or confidentiality designations that revealed “billions of dollars of client account information, from residents of numerous states and possibly Europe.” Rut-roh.
To compound the issue, Turiano alleges that plaintiffs showed the documents — which, remember, weren’t protected by a confidentiality agreement — to the New York Times, which then wrote about the consumer information that was produced. All in all, an incredibly messy affair.
But how, exactly, did it all happen?
Well, Turiano filed an affidavit with the court, explaining just why this happened. As Law.com reports, there are three excuses she lines up, and while they are understandable, they are also incredibly easy to prevent.
First up:
“Unbeknownst to me, the view I was using to conduct the review has a set limit of documents that it showed at one time,” said Wells Fargo’s attorney, Angela Turiano, a New York-based principal at Bressler, Amery & Ross, in an affidavit. “I thought I was reviewing a complete set, when in fact, I only reviewed the first thousand documents.”
Wait — hold up. You thought the entire universe of documents was a nice even 1,000 documents? If she’d reviewed 1,001 docs or 997, I could give her a pass, but when search results turn up such a round number, that is always cause to investigate further and figure out exactly what you’re looking at. Also, the produced documents were 1.4 gigabytes of data…. were these mega spreadsheets? That amount of data doesn’t easily match up with 1,000 produced documents, and should have been another giant, flashing red flag.
Turiano also said the documents she flagged as needing redactions “were not redacted” before production. “I realize now that I misunderstood the role of the vendor,” she said.
Well, yes. You should obviously understand the role of everyone on the litigation support team. Like on day 1. Also, I don’t want to nerd out on ediscovery stuff, but many platforms allow a simple pre-production quality control step that would have caught that, like a search that identifies documents that are tagged for redaction that don’t have actual redactions applied to them. When I worked at a ediscovery vendor, that was a standard step that would have called attention to the error.
“Finally, I now understand that I may have miscoded some documents during my review.”
Actually, this is the most understandable mistake. Missing confidential data, particularly when it’s buried in large documents, is just something that happens… which is why having a broadly worded confidentiality agreement in place is key. Producing non-public business documents without any level of protection can be risky. Sure, that would probably be a lesser protection than the highly sensitive client data that was produced actually deserves, but it would prevent your adversaries from showing the data to the New York Times.
The entire notion of producing this much material that no one ever looked at is enough to give me sympathy agita. Let’s hope it’s a learning experience and the firm won’t make a similar unforced error in the future.
Kathryn Rubino is an editor at Above the Law. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
