Last week, it was reported that President Trump’s personal lawyer, Michael D. Cohen, was parting ways with his own counsel from the firm of McDermott Will & Emery as he prepared to fight a federal investigation. The reason for the split was reportedly over costly legal bills stemming from the “laborious review of a trove of documents and data files” seized during raids on Cohen’s office in early April — so laborious, that it was reported that one associate was sent home because of a hand tremor.
In early May, Legaltech News reported that government attorneys were encouraging that technology-assisted review (TAR) be used “to identify potentially privileged material for review in an efficient manner.” The process was recommended by one of the government’s candidates for special master, former U.S. Magistrate Judge Frank Maas of the Southern District of New York.
While Maas considered it more challenging to use TAR for privilege review than finding relevant documents, it’s still a valuable process. Per Legaltech News:
“Maas noted that after finding all communications between Cohen and his clients, one can then use those documents to ‘train the tool through an iterative process to discriminate between privileged and non-privileged communications.’”
Dave Lewis, chief data scientist at Brainspace Corp., stated that using TAR to identify privileged documents is just one way to use the technology. Explained Lewis to Legaltech News:
“Another approach would be to flip the problem on the side and build one or more TAR models to identify types of non-privileged material to remove them from consideration.”
The advantages of using TAR are many, but in particular, as listed by government attorneys, it “generally provides for the most efficient, expeditious and neutral review.”
TAR proponent Maas, however, was not selected as special master. Barbara Jones, former Southern District of New York judge and current partner at Bracewell, was selected. Legaltech News noted in its early May report that Jones’ history with TAR was not well-documented.
The New York Law Journal reported in late May that Jones had submitted an invoice in the amount of $47,390 for review work (at an hourly rate of between $670 and $700) conducted in April. According to the report, the government will cover one half while other parties collectively will cover the other half. Cost clearly became an issue per the June news of Cohen’s split with counsel.
On a related note regarding Cohen’s documents for review, Ars Technica was recently reported that the government was able to recover data stored — “a trove of a trove of messages and call logs” — from ephemeral messaging apps WhatsApp and Signal on Cohen’s Blackberry. This is now additional evidence for review. Specifically, per Ars:
“Jones and Cohen’s attorneys have already reviewed an initial collection of data from two phones and an iPad. Jones ruled that out of 291,770 total items from those devices, ‘148 items are Privileged and/or Partially Privileged and that 7 items are Highly Personal.’ But an additional 315 megabytes of data have been pulled from the first of the two BlackBerries, and its contents were delivered to Cohen’s attorneys on June 14. An unknown amount of data remains on the second BlackBerry.”
In a recent blog post, we explored the enduring problem with ephemeral messaging, in particular when government officials use them to conduct business that the public should be aware of.