Strategies for Preserving the Attorney-Client Privilege in the World of Electronic Discovery

1. Strategies for Preserving the Attorney-Client Privilege in the World of Electronic Discovery Beth Rose Ford Motor Company

2. 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

3. Legal Backdrop • eDiscovery rules • Rapidly developing caselaw • Often conflicting • Proposed Federal Rules changes • Privilege law • Often conflicting • Not necessarily in sync with eDiscovery rules

4. 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

5. 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

6. “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

7. 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

8. Avoiding Inadvertent Production (con’t) • Document Production • Segregate out privileged documents into a separate database • Limit access

9. 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

10. 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)

11. 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