Judicial Guidance on Enhancing Conflicts Screening for Document Reviewers
Editor’s Note: Modern discovery workflows rely heavily on advanced technology, yet the ethical and operational responsibilities surrounding document review remain firmly in human hands. In this article, seasoned eDiscovery practitioner Phil Favro examines a court decision that offers practical direction on one often overlooked issue: conflicts screening for contract review attorneys. Drawing from the case Manassa v. Nat’l Collegiate Athletic Ass’n, Favro highlights how gaps in verification, reviewer vetting, and employment oversight can create avoidable risk during large-scale review projects. The case also illustrates how courts evaluate internal safeguards, including access controls and documented review protocols, when conflicts surface. For legal teams and service providers who regularly staff review matters, the decision provides a clear reminder that defensibility depends as much on governance and diligence as it does on technology. Favro’s analysis outlines concrete steps organizations can take to strengthen screening procedures and reduce the likelihood of costly disputes.
Judicial Guidance on Enhancing Conflicts Screening for Document Reviewers
By Phil Favro, Contributing Author for HaystackID
AI is revolutionizing how lawyers and their clients handle legal matters, including the discovery process in civil litigation. One of the more intriguing use cases for AI includes the search for, identification, and review of documents. Referred to by several different names, including Human-Assisted Review (HAR), AI-driven review workflows—depending on the circumstances of the case—could provide clients with the potential to more efficiently identify responsive documents. Some have even suggested that AI-review workflows could reduce the reliance on or possibly even eliminate document review attorneys in the future.
That scenario—one in which document review attorneys become obsolete—remains theoretical. Lawyers are still working with vendors to staff document review projects with skilled contract review attorneys, and those attorneys are still a key aspect of many review workflows. With that being the case, lawyers and clients should make sure that their document review process—an integral portion of which may include review attorneys—satisfies acceptable practices for both legal and ethical issues.
An important aspect of developing defensible review workflows is ensuring that document review attorneys meet ethics standards, including competence, confidentiality, and conflicts of interest. While the first two items are clearly front and center when it comes to review workflows, the significance of having a vigorous conflicts of interest screening process should not be overlooked. If a vendor or law firm were to engage a review attorney with an undisclosed conflict of interest, it could spawn any number of collateral disputes, including a motion to disqualify counsel of record.
This very issue arose in the case of Manassa v. Nat’l Collegiate Athletic Ass’n, where the court was asked to consider whether the plaintiff’s law firm should be disqualified due to a conflict of interest resulting from one of its staff attorneys working on both sides of the case. [1] While the court ultimately sided against disqualification, Manassa is an important reminder that conflicts of interest are an ever-present reality in eDiscovery. Moreover, Manassa provides guidance on how clients, counsel, and vendors can enhance their screening processes to spot potential conflicts among document review attorney candidates.
The Conflict of Interest in Manassa
The conflict in Manassa stemmed from an attorney (Sakthivel) whose moonlighting resulted in Mr. Sakthivel occupying roles on both sides of a lawsuit. Fegan Scott, the firm representing the plaintiff in a putative class action against the NCAA, had engaged Mr. Sakthivel as a staff attorney based in California. Mr. Sakthivel had a fully remote role at Fegan Scott, where he served as a document review lawyer. During his time with Fegan Scott, Mr. Sakthivel primarily reviewed documents on a matter unrelated to the Manassa litigation. Moreover, Mr. Sakthivel did not have access to the Manassa litigation file from Fegan Scott or otherwise receive confidential information regarding the lawsuit.
Subsequent to his employment with Fegan Scott, Mr. Sakthivel sought simultaneous employment as a document review attorney with the NCAA’s eDiscovery service provider (“provider”) in Manassa. Mr. Sakthivel submitted an outdated resume to the provider that indicated his current employer was Robbins Geller Rudman & Dowd LLP (Robbins Geller) and not Fegan Scott. The provider conducted some background research on Mr. Sakthivel, but apparently did not review his LinkedIn profile or otherwise explore the Robbins Geller website to determine whether Mr. Sakthivel’s representations were accurate. The provider eventually engaged Mr. Sakthivel to review documents for the NCAA litigation in which Mr. Sakthivel’s current employer, Fegan Scott, was representing the plaintiff.
As a document review attorney for the NCAA in Manassa, Mr. Sakthivel billed around 183 hours over a month, during which he reviewed, analyzed, and coded 6,662 NCAA documents directly related to the Manassa matter. Of the documents he reviewed, Mr. Sakthivel coded at least 640 responsive and those documents were produced to Fegan Scott, Mr. Sakthivel’s principal employer. The provider subsequently terminated Mr. Sakthivel as a review attorney “due to ‘the severity and quantity of issues’ with his work.”
Fegan Scott Learns about the Conflict
A few weeks after his departure, the provider discovered that Mr. Sakthivel was also working as a full-time attorney for Fegan Scott throughout his time as a document reviewer. The provider notified the NCAA, which then contacted Fegan Scott about the conflict and requested that the firm withdraw from representing the plaintiff in Manassa.
Fegan Scott did not withdraw. Instead, the firm immediately placed Mr. Sakthivel on administrative leave after learning of the conflict and suspended his access to Fegan Scott’s computer systems, including its client files. The following day, Fegan Scott terminated his employment with the firm and filed an “Attorney Misconduct Complaint” with the California State Bar.
The NCAA eventually moved to disqualify Fegan Scott, arguing that the firm had an “irreconcilable conflict of interest” due to Mr. Sakthivel’s involvement on both sides of the Manassa litigation. In response, Fegan Scott asserted that it should not be disqualified despite Mr. Sakthivel’s conduct (which the firm did not condone) for several reasons, including that its former attorney was not privy to any confidential information regarding the Manassa case.
The Court Denies the Motion to Disqualify
While agreeing that Mr. Sakthivel “committed serious ethical violations,” the court ultimately denied the motion to disqualify Fegan Scott. As a foundational matter, the court determined that Mr. Sakthivel violated Indiana Rule of Professional Conduct 1.7(a). Rule 1.7 generally prohibits concurrent representation of clients who are adverse to one another. In addition, the court ruled that Mr. Sakthivel’s violation should be imputed to Fegan Scott.
Nevertheless, the court declined to disqualify Fegan Scott, finding that the two principal factors that typically warrant disqualification were not present in this instance. The first factor—that the firm typically shares the same incentive as the conflicted attorney—was not applicable since Fegan Scott was committed to its representation of the plaintiff and did not financially benefit from Mr. Sakthivel’s moonlighting.
Nor was the second factor applicable, i.e., that the conflicted attorney had access to confidential information about the matter at issue. Fegan Scott produced technology reports that tracked employee access to specific client files. Those records confirmed that Mr. Sakthivel was isolated from the Manassa case while working at the firm and did not access confidential information relating to the lawsuit. Such evidence, together with the fact that Mr. Sakthivel was a remote employee who had not met a Fegan Scott employee in person, convinced the court that Mr. Sakthivel had not received confidential information regarding the Manassa matter.
Finally, the court observed that the provider missed “several opportunities” to discover that Mr. Sakthivel was working for Fegan Scott. The court suggested that Mr. Sakthivel’s LinkedIn profile and his bio on the Fegan Scott website should have tipped off the provider to his employment with the firm. In addition, the provider could have checked the Robbins Geller website, which would have confirmed that Mr. Sakthivel was no longer working there despite the representation on his resume. The court also indicated that the provider should have inquired about Mr. Sakthivel’s employment with Robbins Geller during its interview with him since “standard practice typically prohibits employees of a firm from accepting outside employment.” While acknowledging that Mr. Sakthivel was ultimately at fault, the court reasoned that the provider “had the last/best chance to prevent the situation that unfolded.”
Guidance on Conflicts Screening for Document Reviewers
Manassa offers guidance to lawyers and vendors for managing risks—both ethical and practical—when engaging contract review attorneys as part of a document review process.
First, Manassa teaches that due diligence requires more than “box checking” on a questionnaire to guard against possible conflicts of interest. While not faulting the provider for what ultimately transpired, the court did spotlight its expectation that vendors and law firms would undertake basic internet searches to verify a candidate’s employment status and background, and bar status. Though not foolproof, searches on LinkedIn, firm websites, and other online locations may yield a wealth of background material to confirm or refute candidate representations.
Next, Manassa underscores the importance of including anti-moonlighting provisions in both firm employee handbooks and contract reviewer engagements. While Mr. Sakthivel did not abide by his agreement with Fegan Scott not to undertake employment outside the firm, the firm’s agreements with Mr. Sakthivel provided a key point of evidence (on which the court relied) confirming the firm would not expect or tolerate simultaneous employment by its employees. While ostensibly a standard practice, Manassa makes clear that agreements should memorialize proscriptions against concurrent employment.
Another lesson from Manassa is that firms may consider using document management systems to better manage access to confidential client information. Those systems could safeguard access to confidential client information from personnel who are not staffed on a matter and maintain audit logs demonstrating who accessed client materials. In the event of a conflict like that which arose in Manassa, having systems in place with these features can help substantiate a firm’s position that it protected confidential information from the conflicted lawyer and that the firm should accordingly not be disqualified.
By adopting these and other lessons from Manassa, vendors and firms can enhance their conflict screening procedures for document reviews. Doing so may help them either identify a conflict before engaging a contract review attorney or more effectively mitigate resulting harm should a conflict arise.
[1] Manassa v. Nat’l Collegiate Athletic Ass’n, No. 1:20-CV-03172-RLY-MJD, 2022 WL 2176334 (S.D. Ind. June 16, 2022).About Phil Favro
Phil Favro is the founder of Favro Law PLLC, where he counsels clients on ESI, AI, and discovery issues and serves as a special master, mediator, and expert witness. Phil is nationally recognized for his expertise on ESI, discovery, and information governance, with courts acknowledging his credentials. See, e.g., Oakley v. MSG Networks, Inc., No. 17-CV-6903 (RJS), 2025 WL 2061665 (S.D.N.Y. July 23, 2025). This background makes Phil particularly well-suited to counsel clients and advise courts on information-related issues. As a special master, Phil is acclaimed for his collaborative approach, working with parties to find stipulated solutions to complex issues. For disputes that require adjudication, he is renowned for the clarity and vigor of his written dispositions, which are available on legal search engines.
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