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 – 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