Protecting the Attorney-Client Privilege

							 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
High turnover in work force
High vendor and legal costs
           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
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
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
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
 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)

Document Production
– Segregate out privileged documents into a
  separate database
– Limit access
    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
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)
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