Migrated from eDJGroupInc.com. Author: Amber Scorah. Published: 2012-02-06 12:23:55Format, images and links may no longer function correctly. The line of transparency and privilege is a difficult one to walk. In part two of this interview, we discuss more issues faced by outside counsel, including some insights into 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.
Amber Scorah (AS): How does one effectively assert attorney client privilege for electronically stored information?
Sarah Jane Gillett: There is a growing debate about how to claim privilege for large groups of electronically stored information, such as volumes of email. Preparation of a log in the event of thousands of communications is extremely burdensome and time-consuming, if done email by email. While some jurisdictions continue to require a document-by-document log, other courts are more open to innovation in this area, which is demanded by the growing volumes of electronically stored information.
In my experience, if both sides of a dispute are organizations likely to possess privileged information, what the privilege log will look like can successfully be negotiated with opposing counsel along with the rest of an ESI protocol. I have used categorical privilege logs on several occasions with much success. Often, once counsel has an understanding of the types of responsive documents protected by privilege, it is possible to fashion categories to cover the various situations in far less time and for far less money than the traditional log. This is in everyone’s benefit; to the extent that the opposing party intends to oppose the designation of a document as privileged, the opportunity will come far sooner and all of the information needed for the movant is available.
Additionally, in any significant document case, the opportunity to use technological tools to identify privileged documents and to create, at least a rough cut of a log, should be fully explored and often results in a savings of both cost and time.
AS: How do you determine just how much information to reveal to the opposition while protecting the privilege?
Sarah Jane Gillett: A privilege log is the document prepared by the party claiming the privilege to apprise the opposing party of non-privileged facts relating to the document, such as the identities of the sender, the recipient, the date, and a general description of its contents. If you were to ask ten lawyers about their views on preparation of a privilege log, you would probably get ten different answers. Some counsel take an extremely aggressive view as to the information to be disclosed, while others are much more conservative. Again, knowledge of your particular forum is likely to be a guiding factor in determining just how much to disclose on a log. Some jurisdictions have local rules specifying the information to be provided.
AS: How does one ensure that reasonable steps were taken to prevent inadvertent disclosure that may result in a privilege waiver?
Sarah Jane Gillett: Some guidance can be drawn from the growing body of case law dealing with inadvertent disclosure claims in the context of Federal Rule of Evidence 502 and the production of ESI. Although every situation may require different measures, there are some general rules to abide by.
We counsel clients to develop a complete preservation, collection, search, review and production plan on the front end of the case. When we oversee these efforts, we document every step along the way and, should the client utilize a third-party e-discovery vendor, we typically vet the vendor ourselves and designate an attorney experienced in e-discovery to oversee the engagement. I am a proponent of the Sedona Conference protocols regarding the retention of vendors and quality control measures that can be employed throughout the life of an e-discovery project.
We also recommend the use of advanced technologies to assist in the initial identification of potentially privileged ESI as well as sampling techniques employed on the data set as a whole to assess the effectiveness of the privilege screen. If contract attorneys are utilized to conduct review, we are heavily involved in training the reviewers and designing the review protocol. While there are no guarantees, current best practice dictates taking these reasonable steps.
For more on this topic, visit www.e-discoveryoilandgas.com or email amber.scorah@iqpc.com.
Contributor: Amber Scorah, Legal IQ