Protecting privileges with eDiscovery

As it is known, in every litigation, there are certain matters that, for evidentiary reasons, are considered privileged and may not be subject to inquiry in the discovery phase. Such information is not subject to disclosure and may not even be asked into testimony.?One of these protected areas is the confidentiality of the communications between lawyers and their clients, also known as the attorney-client privilege. Contrary to what some believe, the privilege does not cover all communications. The attorney-client privilege only protects communications that convey the substance of legal advice. As stated in Rule 1.6 of the ABA Model Rules of Professional Conduct, "communications to or from a lawyer that don't seek or give legal advice are not privileged."?

However, technology development brought new ways to waive privileges. Emails and short messaging such as Microsoft Teams or social media can often lead to a privilege waiver that may be incorrectly produced as litigation exhibits. For instance, upon a discovery request, the requested party may send conversations between the litigant and its legal representative mixed among thousands of other emails and short message communications. This is one of the circumstances where expertise in eDiscovery becomes extremely valuable.?

With the knowledge of tools like TAR or AI document review, eDiscovery attorneys will review electronic communications improperly submitted as part of a legal hold to determine what information might be protected by an evidentiary privilege. They will then exclude or redact parts of these documents to properly follow the evidentiary rules of the specific jurisdiction.???

An example of a privileged issue with short messaging communication can be found in the case of Total Recall Technologies Inc. v. Luckey, No. 15-cv-02281 (N.D. Cal. May 17, 2016). In Total Recall vs. Luckey, skype messages resulted in the waiver of a litigant's privileges even after the parties had a protective order preserving the attorney-client privilege in the event of inadvertent disclosure. In this case, the plaintiff produced the same privileged redacted and unredacted documents. The unredacted documents were offered in an amended version, exposing the opposing party's information. The court concluded that the disclosure was not inadvertent and that the attorney-client privilege was waived after determining that a lawyer reviewed the production. So it could not have been an "inadvertent" production.?

A proper eDiscovery Practice will protect litigants using this resource from the loss of this or any other evidentiary privilege that they may legitimately be entitled to claim. eDiscovery allows parties to conduct a review of case files with the agility needed to handle the high volumes of electronic documents produced daily and potentially used in a future trial.?

Source:?

https://www.relativity.com/blog/great-moments-in-blowing-the-attorney-client-privilege-in-e-discovery/

Article by: Nacha M. González Ramos?

About Agile:

Agile has been in service to various U.S.-based law firms since our inception back in 2019. We've been most heavily involved in document review in the Relativity platform, as well as plaintiff fact sheets and intake on platforms such as CaseLocker and TimeMatters. During these past years we've built up a portfolio of extensively trained full-time eDiscovery specialists, all touting a Juris Doctor from an ABA-accredited law school.?

For further information please visit www.agiledocreview.com

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