Technology: The impact of digital age innovations on the attorney-client privilege

Some professionally recognized best practices can help companies shield their privileged information

Technology has certainly been a game-changer for the attorney-client relationship. In particular, digital age innovations have facilitated communication between companies and their counsel. While messaging was previously limited to traditional options such as telephone calls, paper letters and facsimiles, lawyers and clients now enjoy an abundance of media to instantaneously exchange information. In addition, the methods for doing so have also expanded, with smartphones and tablet computers replacing desktop computers and other antiquated tools. And with the proliferation of cloud computing, both client and counsel essentially have an unlimited virtual warehouse in which to store their digital discussions.

Yet these same technological innovations also present a myriad of complications for the attorney-client privilege. As both a procedural rule and an evidentiary hurdle that exclude relevant information from legal proceedings, strong policy reasons have traditionally mandated that the privilege be narrowly construed. That limited scope of protection continues to shrink as technologies provide unexpected transparency into the zone of confidential exchanges between clients and lawyers. Unless appropriate safeguards are taken, the use of social networks, cloud computing and bring your own device (BYOD) policies could jeopardize enterprise privilege claims.

Contributing Author

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Philip Favro

Philip Favro brings over fourteen years of expertise to his position as Senior Discovery Counsel for Recommind, Inc. Phil is an industry thought leader, a...

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