Walking the Lines of Transparency and Attorney-Client Privilege for ESI – An Interview with Sarah Jane Gillett, Partner at Hall Estill

Migrated from eDJGroupInc.com. Author: Amber Scorah. Published: 2012-01-24 11:42:27  In the highly litigious oil and gas industry, outside counsel must ensure that they have conducted adequate due diligence in managing and producing electronic evidence.  The line of transparency and privilege is a difficult one to walk.In part one of this two-part interview, Sarah Jane Gillett, Partner at Hall Estill, gives an overview of the increased responsibility to preserve and subsequently produce relevant documents in various forms, and some insights into what exactly is protected by attorney-client privilege: AS: Can you give a brief overview of the increased responsibility to preserve and subsequently produce relevant documents in various forms?Sarah Jane Gillett:   There is no question that counsel today must be cognizant of the responsibility to identify and potentially collect various forms of evidence at an extremely early stage of any litigation or investigation.  While the Federal Rules of Civil Procedure (and applicable federal case law) make clear that the failure to do so can lead to merits-related consequences, we often encounter energy litigation in a variety of state courts where the standards and expectations are not as clear-cut.Knowing your forum is one of the primary factors in assessing preservation issues early on.  Additionally, developing key client contacts, either with in-house counsel, if the client has an in-house legal department, or with a business person of a sufficient level, along with the client’s information technology department, is critical in order to work with the client to ensure that affirmative steps are taken to avoid spoliation concerns.While the duty to preserve evidence is nothing new, the stakes are seemingly higher when electronically stored information is at issue because of the amount of data, the complexity of today’s information technology systems, and the fact that spoliation can occur inadvertently in the course of routine business operations.AS: What is protected by attorney-client privilege?Sarah Jane Gillett:   The main thrust of the attorney-client privilege is to protect from disclosure communications to or from counsel occurring in the course of the giving or receipt of legal advice. While the outer boundaries of the privilege may depend on the specific jurisdiction’s law that controls the dispute, determining whether a document is privileged is often a fact-intensive endeavor to be undertaken by counsel with knowledge of the dispute and the role of the players.  Moreover, other privileges may come into play as well such as the joint defense or common interest privilege.Stay tuned for Part Two of the the interview where we discuss asserting attorney client privilege for electronically stored information, where the line of transparency lies, and how to ensure that reasonable steps were taken to prevent inadvertent disclosure that may result in a privilege waiver.  Feel free to comment and let us know your thoughts about dealing with Attorney-Client Privilege for ESI.  Contributor:  Amber Scorah, Legal IQ