Strategies for preserving the attorney client privilege in the world of electronic discovery
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Strategies for Preserving the Attorney-Client Privilege in the World of Electronic Discovery. Beth Rose Ford Motor Company. World of eDiscovery. Potentially millions of pages to collect and review E-mail can be voluminous and time-consuming to review Tight timing deadlines

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Strategies for Preserving the Attorney-Client Privilege in the World of Electronic Discovery

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Strategies for preserving the attorney client privilege in the world of electronic discovery

Strategies for Preserving the Attorney-Client Privilege in the World of Electronic Discovery

Beth Rose

Ford Motor Company


World of ediscovery

World of eDiscovery

  • Potentially millions of pages to collect and review

    • E-mail can be voluminous and time-consuming to review

  • Tight timing deadlines

  • High turnover in work force

  • High vendor and legal costs


Legal backdrop

Legal Backdrop

  • eDiscovery rules

    • Rapidly developing caselaw

      • Often conflicting

    • Proposed Federal Rules changes

  • Privilege law

    • Often conflicting

    • Not necessarily in sync with eDiscovery rules


Risks challenges

Risks/Challenges

  • Massive amounts of electronic information may yield large privilege collections requiring considerable resources to review, log and defend

  • Massive amounts of electronic information and short deadlines make inadvertent production of privileged documents more likely


Risks of inadvertent production

Risks of Inadvertent Production

  • Opposing counsel is privy to privileged information

  • Waiver of privilege for disclosed documents

  • Subject matter waiver for all documents relating to the subject at issue

  • Media attention


Clawback agreements

“Clawback” Agreements

  • Good source of protection

  • Not necessarily bullet-proof

    • Pattern litigation (other courts may not uphold)

    • Privilege law with respect to inadvertent sharing differs between jurisdictions

      • Always waives privilege

      • Never waives privilege

      • Middle approach: apply rigorous, fact-intensive test

        • Number of documents reviewed v. number disclosed

        • Speed of review

        • Procedures for reviewing

        • Whether procedures were followed

        • Speed with which producing party asked for the documents back


Avoiding inadvertent production

Avoiding Inadvertent Production

  • Document Collection

    • Tailor scope of collection to avoid bringing in irrelevant privileged information

  • Document Review

    • Be cautious of electronic mining tools as sole method of P&C review

    • Provide robust training for document reviewers

    • Implement rigorous QC procedures for review process

      • Possibly use privilege expert

      • Auditing/Data mining

    • Cast a broad net for preliminary privilege calls


Avoiding inadvertent production con t

Avoiding Inadvertent Production (con’t)

  • Document Production

    • Segregate out privileged documents into a separate database

    • Limit access


What to do if there is an inadvertent disclosure

What To Do If There Is An Inadvertent Disclosure

  • Ask for the documents back from opponent

  • Decide whether the documents are worth fighting over

    • Outside counsel focus may be narrow

    • In-house counsel must look at corporate strategy/principles

  • Go to court with evidence relating to robust processes and procedures for document review

  • Be prepared to seek mandamus and/or appellate relief


Role of in house counsel

Role of in-house counsel

  • Must be knowledgeable about eDiscovery issues and specific workings of company information systems

    • Acts as liaison between internal clients, legal personnel, IT and outside vendors

    • Is in best position to know what is actually privileged and where privileged information is likely to reside

  • Must retain experienced outside counsel to manage eDiscovery projects

    • Possibly retain separate privilege law expert (depending on size of project)


Role of in house counsel con t

Role of In-House Counsel (con’t)

  • Must “own” the project

    • Develop strategy for each case that meets overall corporate goals and is in line with other similar litigation

  • Balance risk of disclosure of privileged information with review costs, timing, etc.

  • Decide which battles to fight


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