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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

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