Protecting attorney-client privileged communications has never been more difficult, especially for in-house counsel. While there are many reasons for this trend, two key contributing factors include the role of technology and the growth of information subject to privilege reviews. These issues – which make privilege claims more difficult to defend – also have implications for in-house counsel’s duty of competence. This is because lawyers are now expected to understand “the benefits and risks associated with relevant technology” as part of their overall duty to “keep abreast of changes in the law and its practice” under ABA Model Rule 1.1.
The impact of technology
Technological innovations are problematic for privilege claims since they provide increased visibility into ostensibly confidential communications. For example, email now provides a written record of internal corporate discussions involving counsel that did not exist before the electronic age. Those messages — which reflect legal counsel, business advice or both — are often in play during litigation due to the inclusion of counsel on non-privileged emails, tactically sanitized privilege logs and undetected draft emails. These “productivity” features of email all serve to undermine privilege claims.
Social networking sites, cloud computing and mobile devices likewise create problems for privilege assertions. As described in an article recently published by the Richmond Journal of Law & Technology, these innovations may provide unwanted transparency into seemingly confidential discussions between in-house counsel and its organizational client. With respect to social networks and cloud computing, third parties may have access rights to lawyer-client communications that are made or stored through these technologies. Such access could destroy the sacrosanct element of confidentiality required to keep those discussions privileged. Third parties — including the NSA — could also gain access to privileged data on mobile devices unless appropriate technical safeguards are deployed to shield that information from prying eyes.
The role of information growth
Besides technology, the growth of information subject to privilege reviews is also creating headaches for in-house counsel. As the scope of potentially privileged materials expands, the burden and expense of sorting through those materials to segregate privileged content for e-discovery purposes similarly increases. To alleviate those costs and to satisfy court-imposed production deadlines, in-house counsel may be tempted to have retained counsel forego a painstaking privilege review and instead assert blanket privilege claims in a privilege log. Such a shortsighted tactic frequently leads to expensive motion practice as dissatisfied adversaries seek judicial scrutiny to ensure that privileged information is not being withheld from discovery. Finally, with so much information in play, there is also the risk that potentially privileged materials may slip through and be produced to the other side.
Best practices for protecting the privilege
While the above referenced scenarios could become costly, disastrous or both, there are measures that in-house counsel can take to ameliorate the impact of technology and information growth on privilege claims. Before litigation is filed, in-house counsel can work with its corporate client to implement email usage policies and related training that would encourage lay employees to reduce the amount of unnecessary email directed to lawyers. Policies, training and supporting technologies can also help address the problems associated with the use of social networks and mobile devices. On the cloud computing front, counsel can advise its client to negotiate specific terms to protect privileged discussions and other confidential information from third parties.
Once in litigation, there are additional measures that can help safeguard privilege claims. One such measure is to reduce the burden of preparing a comprehensive privilege log. In-house counsel should encourage its counsel of record to stipulate with opposing counsel or to seek a court order limiting the scope of a log. Those limitations could include identifying only the last-in-time email in a particular string, preparing a privilege log by category or eliminating the log altogether.
In-house counsel should also insist that retained counsel obtain a court order pursuant to Federal Rule of Evidence 502(d) that prevents inadvertent waivers of the privilege. Many e-discovery cognoscenti have asserted that such a step has little downside and is essential to ensuring the safe return of mistakenly produced privileged content.
A final step that in-house counsel should consider is making sure that outside counsel is using enabling technologies to support its privilege reviews. Introducing technologies — such as predictive coding, visualization tools, and other innovations — into existing e-discovery processes can facilitate privilege logging by helping counsel to more readily isolate attorney-client communications from other responsive documents.
By developing actionable and defensible corporate policies, providing suitable training to employees, and insisting that outside counsel use technologies to facilitate compliance, in-house counsel may be able to address some of the problematic effects of technology and information growth on the privilege. By so doing, in-house counsel can better satisfy its duty of competence with respect to safeguarding the privilege.