privileged docs

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Privileged Documents

Had Em, Lost Em Get Em Back

May 4, 2007

Denyse L. Jones and Kelly W. King

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The jury is instructed to ignore the law, justice,logic and common sense and consider only the

harmful, random memos buried among the

defendants records.

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Privileged Documents

Had Em, Lost Em Get Em Back1. How privileged materials get outthere.2. How to protect what you kept.3. How to retrieve what slipped

through4. How to prevent slips in the future.

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FEMA

Field rep: Situation is past critical thousands gathering in the streets with nofood and waterdying patients being

medivacdwe are running out of food andwater at the dome...critical need

everywhere...

Ron Brown: thanks for the update. Anythingspecific I need to do or tweak?

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ENRON

EnronEmail.com: 515,000messages- Vendor search tool toy- 28% unrelated to business- so you were looking for a one- night stand, after all?

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Em ai l about Em ai l :

Securities case: Shut upand destroy this email

ENRON: Today is not good.

Too many documents toshred. Tomorrow is better.

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The B ig Pic t ure What is ESI?

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The Big Pic t ure - Volum e/Cost

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Metada ta

Jfka;jiosjoijdjkafjdkfjicvjvdjmfkahdio;jvjmdklfjd

kjkajkvjk;jdia;fjakdnfkajkgjmkaljg = When created By whom Sent to whom and when

What edits made

When might it matter: Contract dispute Trade Secrets/Non-compete Retaliation case

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Pr inc ipa l Form s of Produc t ion

for ESI

Hard Copies paper documents Images (e.g., .tif, .pdf*) *with or without textlayer Data exported to databases, text files, or loadfiles

(e.g., .csv

files, .txt files)

Native format data viewed in the applicationin which file was created Hosted data controlled-access website

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There is absolutely no basis for plaintiff

to argue for judgment as a matter oflaw and this Court should summarily

deny the motion and direct the partiesto proceed to trial.

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There is absolutely no basis [Bob: as youknow, the Angle

case arguably provides a

basis for Ps position, but they didnt citeit. I know you think its distinguishable,

but can we really say absolutely nobasis?] for plaintiff to argue for judgmentas a matter of law and this Court shouldsummarily deny the motion and direct theparties to proceed to trial.

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Exce l

Remember that this

is that totally bogus

number you and Icame up with at our

meeting with Jack.

$105.23 $15.23 $10,358.23

$423.16 $25.39 $85,943.56$528.39 $96,301.79

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Priv i lege Review

Develop Fi l t e r Term s

Project word list or dictionary StatisticsIssues:

Names Wildcards

Email Addresses Bi-directional Pairs

PhrasesKey Advice:Document the filter list and method.

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The rea l i t y

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The rea l i t y

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The rea l i t y

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Priv i lege Logs

A "housekeeping" item

Voluminous

delegated to low-cost labor

Complacency: it's clearly privileged

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Priv i lege Logs

Frequently required:1. the basics, date, sender, recipients2. title, occupation, duties

3. how involved in transaction within

company

4. circumstances of creation5. all direct/indirect recipients of

document OR substance

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Priv i lege Logs

Date

From

To

CCs

Topic

1/3/96 Smith Jones Day Notes re Audit

Committee Meeting

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Work Produc t Doc t r ine

Requirements:

Documents

Prepared in anticipation of litigation

By/for party or attorney

Disclosure: Substantial need

Undue hardship

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At t orney-Cl ient Pr iv i lege

1.

Communication

2. Made in confidence3.

To an attorney

4. By a client5. For the purpose of seeking legaladvice

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Priv i lege Logs

Common Logistical Problems:Business v. Legal HatsParent/AttachmentDescriptions

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Priv i lege Logs

Tension:need to reveal enough detail tosubstantiate privilege

vs.

waiver of privilege through excessive

detail as to communication.

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Priv i lege Logs

Descriptions held insufficient:"notes of audit meeting""notes of audit meeting regarding

environmental provisions of acquisition agreement""notes of audit meeting regarding legal implications of environmental provisions of acquisition agreement"

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Priv i lege Logs

Sufficient:"notes of audit meeting reflecting legaladvice as to whether ERISA precluded

certain environmental provisions of acquisition agreement"

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Priv i lege Logs

Inadequate Log Can Constitute Waiver:Insufficient log = failure to meet burdenof establishing privilege

refusal to consider in camera

no opportunity to cure

waiver as to ALL documents

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Tips t o Avo id Pr iv i lege

Log Prob lem s

do it right the first time (be sure the privilege is

applicable)

AAlpharma Inc. v. Kremers Urban Dev. Co.

negotiate specifics in CMO

agreements regarding parents, email threads,

categorical descriptions

beware of downside: categorical waiver

get list of all lawyers/consultants at outset

suggest use of master to resolve disputes

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An attorney now risks committing malpractice or

receiving court sanctions if he or she does notadequately understand how electronic informationis created, stored and communicated.Michael D. Fielding, You Need To Know This: Bankruptcy and Attorney-

Client Privilege in the Electronic Age, 25-10 ABIJ 1 (January 2007)Model Rule of Professional Conduct 1.6(a) statesthat a lawyer shall not reveal information relating

to the representation of a client unless the clientgives informed consent, the disclosure isauthorized to carry out the representation or thedisclosure is permitted by [Rule 1.6(b)].

The B ig Pic t ure Why Should I Care?

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They turned out to beshams, coming from a file

on his computer labeledfake docs.

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5 Basic St eps

5 Basic Steps

Best Practices for ESI*Discovery:

1) Planning2) Collection3)

Processing

4) Reviewing5)

Producing

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How do I re t r ieve w hat

s l ipped t hrough?

FCRA Rule 26 Zubulake Draft Federal Rule of Evidence 502

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FRCP Am end. t o t he Resc ue?

FRCP 26(b)(5)(B): Procedure for dealing withprivileged materials inadvertently produced

FRCP

16(b)(6): Allows the parties to make

agreements for dealing with privilege issues Clawback and similar agreements Incorporates reasoning from Zubulake v.UBS Warburg, 216 F.R.D. 280 (S.D.N.Y.

2003)

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Zubulake/Sedona Conferenc e

t o t he Resc ue?

1983 plaintiff sought 94 back-up tapes Plaintiff order to pay share of restoration cost

Defendant must pay all of their privilege

review cost

Encourages parties to come back with aclaw-back agreed order stating inadvertentdisclosure is not a waiver, docs should bereturned and that any notes or copies will be

destroyed or deleted (quoting Sedona Conf.)

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Right Bac k t o Where We St ar t ed

Advisory Cm t e Com m ent s

Rule 26(b)(5)(B) does not a