Post Process

Everything to do with E-discovery & ESI

Archive for the ‘Attorney Client Privilege’ Category

WA Case Blurb: Sitterson; Test for determining Waiver of Privilege by Inadvertent Disclosure

Posted by rjbiii on December 31, 2008

In adopting the Alldread approach, states the test has the following factors:

These factors are (1) the reasonableness of precautions taken to prevent disclosure, (2) the amount of time taken to remedy the error, (3) the scope of discovery, (4) the extent of the disclosure, and (5) the overriding issue of fairness.

Sitterson v. Evergreen Sch. Dist. No. 114, 2008 Wash. App. LEXIS 2751 at *17 (Wash. Ct. App. Nov. 25, 2008 )

Posted in Attorney Client Privilege, Case Blurbs-WA, State Courts, WA Judge David H. Armstrong, Waiver of Privilege, Washington | Leave a Comment »

Case Summary: Rhoads Indus.; Attorney Client Privilege, the Waiver of Privilege, and Reasonable Precautions

Posted by rjbiii on December 8, 2008

Case Summary: Rhoads Indus. v. Bldg. Materials Corp. of Am., 2008 U.S. Dist. LEXIS 93333 (E.D. Pa. Nov. 14, 2008 )

In a question of the adequacy of a keyword screening protocol, the court entertains a motion to deem plaintiff had waived privilege as to approximately 800 inadvertently produced documents. Rhoads filed the action against Bldg. Materials Corp. of America (“GAF”) for, inter alia, breach of contract, and against R.W. Cooper & Co. (“Cooper”) for negligent misrepresentation.

Rhoads began preparing for the litigation in February, 2007. In June 2007, upon realizing that e-discovery would be extensive in the case, he hired Salvatore Gramaglia as an IT expert. Mr. Gramaglia, after conducting tests, Mr. Gramaglia purchased a license for “Discovery Attender” to be used in electronic searches. Mr. Gramaglia and Kimberly Buchinsky, an associate at Gowa Lincoln P.C., began identifying mailboxes containing relevant information to Rhoads’ project with GAF. The court stated that “Gramaglia and Buchinsky reasonably believed that the computer program would screen out all privileged materials.” Efforts to settle the dispute were unsuccessful, and on November 13, 2008, Rhoads filed the complaint. Discovery commenced shortly thereafter. Sam Washawer, a was bought in by Rhoads for the litigation. He discussed the scope of e-discovery with Mr. Gramaglia and Ms. Buchinsky, and observed the performance of Discovery Attender. He also conferred with Gramaglia and Buchinsky over the topic of search terms for searches.

During January and February of 2008, Gramaglia performed searches using terms supplied by counsel, initially identifying 210,635 documents as “being responsive.” His priv filter consisted of searching the “address line of all e-mails for these terms: *rhoadsinc* and either *gowa*, *ballard*, or *cpmi*. “Gowa” and “Ballard” represents Rhoads’ law firms, while “CPMI” refers to a non-testifying expert for plaintiff. This search resulted in the designation of 2,000 documents as “privileged,” although they were not placed on a privilege log at that time.

In response to the large volume of documents initially returned, counsel narrowed the responsive search criteria, reducing the total documents returned to 78,000 that plaintiff believed were responsive and non-privileged. Ms. Buchinsky then manually reviewed documents from specific mailboxes for privilege. She removed certain documents from the production, and entered them on a privilege log. Meanwhile, counsel also reviewed twenty-two boxes of hard copy documents for responsiveness and privilege.

On May 13, 2008, Rhoads produced to Δ’s, three hard drives containing responsive electronic documents, including the 78,0000 documents returned by the responsive “screen.”

On June 6, 2008, Rhoads produced two privilege logs to Δ’s, in response to a court order. One log was associated with Ms. Buchinsky’s manual review, while the other contained hard copy documents.

On June 5, 2008, Δ’s GAF notified Π’s counsel that some privileged e-mails may have been produced. Π immediately responded by asserting that no privilege had been waived, and that this was likely a case of inadvertent production. Over the next two and a half weeks, Π then conducted nine depositions and responded to Δ Cooper’s Motion to Dismiss before addressing the privilege issue.

On or about June 23, 2008, Ms. Buchinsky began reviewing the 78,000 e-mails produced as a result of the responsive searches executed in Discovery Attender. She generated a new privilege log identifying 812 emails as privileged, producing it to Δ’s on June 30, 2008 as an attachment to a letter invoking FRCP 26(b)(5)(B) to have Δ’s sequester the inadvertently produced documents.

On August 19, 2008, Δ Cooper filed a Motion to Deem that Plaintiff had waived the Privilege to the approximately 800 documents. Δ GAF filed a motion joining Cooper’s motion on August 25, 2008. Defendants did not dispute that the production was inadvertent and that the software purchased by Rhoads was designed to ferret out privileged documents. Defendants did argue that Rhoads’s technical consultant and counsel were not sufficiently careful to review the software screening and to take steps to prevent disclosure when it appeared obvious that privileged material had filtered through the screening procedure.

On November 5, 2008, the first hearing on the waiver of privilege was conducted. All three privileged logs were produced. Mr. Gramaglia and Ms. Buchinsky testified as to the method of creation of the logs, and their relationship to each other. Rhoads admitted that 2,000 e-mails previously designated as privilege had not yet been disclosed in a privilege log. Ms. Buchinsky testified to her belief that a manual review of all 78,000 emails would have resulted in the timely identification of those documents in a privilege log. The court then ordered that any documents not on a privilege log as of the date of that hearing should be produced, absent exceptional circumstances.

After the hearing, Rhoads inspected the 2,000 documents earlier set aside, but not identified in a log, as privilege. The results of this inspection were discussed on a hearing on November 13, 2008. Rhoads concluded that 941 documents were duplicative. Of the 1059 unique documents, 511 were responsive, consisting of 335 privileged documents and 176 non-privileged documents. Of the 335 privileged documents, 215 had been previously identified in other logs. Rhoads agreed to produce the 176 responsive non-privileged documents, and generated a fourth privilege log. The court expressed its opinion that Rhoads might still retain privileged and un-logged documents.

The court then weighed the facts using the five factor test laid out in Fidelity & Deposit Co. of Md. v. McCulloch, 168 F.R.D. 516 (E.D. Pa. 1996). These factors are:

(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production.
(2) The number of inadvertent disclosures.
(3) The extent of the disclosure.
(4) Any delay and measures taken to rectify the disclosure.
(5) Whether the overriding interests of justice would or would not be served by relieving the party of its errors.

On the first factor (reasonableness taken to prevent inadvertent disclosure), the court found that the following factors favored the plaintiff (producing party):

1. Plaintiff purchased a special software program, Discovery Attender, for the purposes of complying with discovery in this litigation.
2. Plaintiff’s technical consultant (Mr. Gramaglia) conducted trial searches prior to purchasing the software and was satisfied with its reliability and accuracy.
3. Mr. Gramaglia was experienced with Rhoads’s computer system.
4. Plaintiff believed that its search terms would pick up all attorney-client communication.
5. Plaintiff did not use “Warshawer” or “Costello” (outside counsel) as search terms because counsel believed Gowa was included on all e-mails going to the client.
6. Plaintiff did not include “privileged” or “confidential” as keyword search terms because all Rhoads e-mails use these words in the signature line at the bottom of every e-mail, and thus use of these words would have identified every Rhoads document as privileged.
7. Ms. Buchinsky spent over 40 hours reviewing documents for privilege before production. Additional attorneys spent significant hours on the privilege review.

The court found the following factors favored defendants (requesting parties):

1. Plaintiff should have used additional search terms to weed out potentially privileged documents, especially the names of all of its attorneys. Here the court cited Bensel v. Air Line Pilot Ass’n, 248 F.R.D. 177, 180 (D.N.J. 2008).
2. Ms. Buchinsky had no prior experience doing a privilege review and her supervising attorneys did not provide any detailed oversight.
3. Plaintiff’s search for privileged documents was limited to e-mail address lines (as opposed to the e-mail body). Therefore any potentially privileged e-mails (as defined by Plaintiff’s search terms) that were subsequently forwarded outside of Rhoads and either Gowa, Ballard, or CPMI would not be captured by its search.
4. Plaintiff produced documents that its limited search should have caught. Therefore Plaintiff not only failed to craft the right searches, but the searches it ran failed. Plaintiff has no explanation for this.
5. As Stanley notes, relying exclusively on a keyword search for the purpose of conducting a privilege review is risky, and proper quality assurance testing is a factor in whether precautions were reasonable. Victor Stanley, 250 F.R.D. at 257, 260. Here there was no testing of the reliability or comprehensiveness of the keyword search.
6. Plaintiff’s only testing of its search was to run the same search again

On the second factor, the number of inadvertent documents produced, the court found this fact favored plaintiffs:

1. The number of documents inadvertently produced represent a small percentage (1-2%) of the total production.

The court found these facts weighed in favor of defendants:

1. 800 inadvertently produced documents plus at least 120 privileged documents that this Court now orders be produced is still a large number of documents regardless of the percentage produced.
2. The court in Stanley found that 165 documents was a sufficiently large number to favor waiver of the privilege.

The court stated that nothing in the record indicated whether the third factor (the extent of the disclosure) weighed in favor of one party over the other.

On the fourth factor (Any delay and measures taken to rectify the disclosure), the court found these facts favored plaintiffs:

1. Plaintiff immediately responded to Defendant’s e-mail that some potentially privileged documents had been produced by stating that production was inadvertent and inquiring which documents Defendant was referring to;
2. As relied on in Fidelity, Plaintiff was under a tight discovery schedule at the time it was notified of the inadvertent production. Fidelity & Deposit Co., 168 F.R.D. at 522. Ms. Buchinsky was helping prepare for nine depositions taken over the course of twelve days. Plaintiffs also had to respond to Defendant Cooper’s Motion to Dismiss during this time.
3. Plaintiff invoked the remedial measure of FRCP 26(b)(5)(B) to have the inadvertently produced documents sequestered at the same time it produced the June 30th privilege log (Ex. D-1), three weeks after learning of the disclosure.
4. Plaintiff was willing to produce a cleansed hard drive (i.e. without the privileged documents) to Defendants in September, but Defendants refused the hard drive.
5. Defendant did not file their Motion to Deem that the Privilege was Waived until two months after Plaintiff produced the June 30th privilege log.

Those facts favoring defendants:

1. Plaintiff had abundant time to review its own documents and segregate any privileged documents before it started the litigation and also before it began producing documents in May 2008;
2. The crunch and time pressure that Plaintiff claims it suffered in June 2008 were caused by Plaintiff not providing adequate resources (e.g. attorneys or paralegals) to the privileged communication issue;
3. Defendants had to bring Plaintiff’s error to its attention instead of Plaintiff catching its own mistake (cites Victor Stanley).
4. It took Plaintiff over three weeks to produce a privilege log of the inadvertently produced documents once it was aware of its mistake.
5. The June 30th privilege log required Defendants to cross-reference each document produced to them against the log to check whether documents were in fact privileged. Plaintiff did not offer Defendants a cleansed hard drive until September.
6. Plaintiffs did not offer suggestions to rectify the inadvertent production until October, after many depositions had been taken.

On the final factor (Whether the overriding interests of justice would or would not be served by relieving the party of its errors), the court found these facts weighed in favor of the plaintiffs:

1. Plaintiff has shown general compliance with the three conditions of Rule 502, although considering the factors in the prior case law, Plaintiff is responsible for the confusion and delay noted above;
2. The loss of privilege would be highly prejudicial to the Plaintiff;
3. Defendants have not demonstrated substantial unfairness that they have suffered because of their inability to review the privileged documents beyond having to cross-reference documents against the June 30th privilege log.

Favoring defendants:

1. Plaintiff should have conducted a more rigorous privilege review and allowing Plaintiff to retain the privilege in these documents may not deter similar conduct in the future.

The court then concluded its opinion by ruling the following:
Those documents that were never logged after designation (part of the 2000 e-mails initially designated as privileged, but not listed in a privilege log until after the Nov. 5 hearing) were not subject to protection, as a failure to identify privilege documents in a log in a timely manner violates FRCP 26(b)(5).

With respect to the documents that were inadvertently produced, the court stated that neither Victor Stanley or Amersham were controlling. The court stated that although the facts in Victor Stanley were similar to those in the instant matter, Judge Grimm’s analysis reflects, to a more significant degree than [the court] believe[s] appropriate, application of hindsight, which should not carry much weight, if any, because no matter what methods an attorney employed, an after-the-fact critique can always conclude that a better job could have been done. The court found that factors one through four favored defendants, while the fifth strongly supported plaintiffs. As defendants have the burden of proof as the moving party, the court concluded that this burden had not been met, and privilege was not waived for these documents.

Posted in 3d Circuit, Attorney Client Privilege, Case Summary, E.D. Pa., Judge Michael M. Baylson, Privilege, Privilege Log, Search Protocols, Waiver of Privilege | Leave a Comment »

Case Blurb: Bobbitt; Elements for Attorney-Client Privilege

Posted by rjbiii on December 8, 2008

The elements of the attorney-client privilege were summarized decades ago by Dean Wigmore as follows:(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.

Bobbitt v. Acad. of Court Reporting, Inc., 2008 U.S. Dist. LEXIS 65513, 17-18 ( E.D. Mich. Aug. 26, 2008) (citing 8 Wigmore, Evidence (McNaughton rev. ed.1961), § 2292, p. 554).

Posted in 6th Circuit, Attorney Client Privilege, Case Blurbs, E.D. Mich., Judge David M. Lawson | Leave a Comment »

Case Blurb: Ahner; Attorney-Client Privilege Basics

Posted by rjbiii on October 17, 2008

Once the proponent has properly asserted the privilege claim and the requisite information about the allegedly privileged document provided to the opponent, the proponent must substantiate all actual assertions about the claim. This is usually done through supporting affidavits from individuals with personal knowledge of the relevant facts, exhibits attached to the motion and briefs, discovery responses, pleadings and other undisputed facts…. To the extent that evidentiary support for the factual basis of the privilege is not forthcoming, the claim is little more than a bald, conclusory, or ipse dixit assertion. The court will deny such an assertion because it forecloses meaningful independent inquiry by the finder of facts (the judge) into the validity of the claim…. Although an attorney’s word may be “taken on its face,” a privilege claim is not self-executing. It requires more proof than a conclusion by the party asserting the claim (or his attorney) that it is justified.
Thus, any objection based on Rule 26(b)(3) may ultimately be sustained only if the objection is both properly asserted and the facts supporting it are established by evidence. [Movant] bears the burden of proof on this claim.
[…]
The mere assertion of a lawyer in oral argument that materials were prepared in anticipation of litigation is not evidence sufficient to bear the burden.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *4 (E.D.La. Aug. 29, 2007) (citing P. Rice, Attorney-Client Privilege in the United States § 11:10 at 977-80 (Lawyers Cooperative 1993))(emphases in the original)

Posted in 5th Circuit, Attorney Client Privilege, Case Blurbs, E.D. La., FRCP 26(b), Magistrate Judge Joseph C. Wilkinson Jr. | Leave a Comment »

New Law Strengthening Attorney Client Privilege Gains Traction in Congress

Posted by rjbiii on July 3, 2008

The American Lawyer online has posted an article explaining that attorney client privilege is the focus of new federal legislation:

The bill would make it illegal for federal prosecutors to order companies to turn over privileged documents as a condition of a cooperating agreement. That has been a popular tactic to get access to the juicy stuff, but it’s already happening less because of the disastrous KPMG tax shelter case, says William Sullivan, a Winston & Strawn partner and former federal prosecutor who spoke at a panel discussion during ALM’s Corporate Counsel Conference earlier this month [ALM is the parent company of The Am Law Daily and The American Lawyer].

In the KPMG case, a federal judge tossed out indictments against several individual defendants after learning that prosecutors banned KPMG from paying their legal fees — a condition the judge considered onerous.

The article mentions that some are surprised by the bill’s momentum in the post-Enron and Worldcom environment, but notes that a broad and unlikely coalition of organizations came together to express support. Supporters include the ACLU, the Association of Corporate Counsel, and 32 former federal prosecutors.

Posted in Articles, Attorney Client Privilege, Legislation, Trends | Tagged: | Leave a Comment »

Case Blurb: Creative Pipe; Court describes process for maintaining attorney-client privilege

Posted by rjbiii on June 15, 2008

[I]nsuring that a privilege or protection claim is properly asserted in the first instance and maintained thereafter involves a several step process. First, pursuant to Fed.R.Civ.P. 26(b)(5), the party asserting privilege/protection must do so with particularity for each document, or category of documents, for which privilege/protection is claimed. At this first stage, it is sufficient to meet the initial burden by a properly prepared privilege log. If, after this has been done, the requesting party challenges the sufficiency of the assertion of privilege/protection, the asserting party may no longer rest on the privilege log, but bears the burden of establishing an evidentiary basis–by affidavit, deposition transcript, or other evidence– for each element of each privilege/protection claimed for each document or category of document. A failure to do so warrants a ruling that the documents must be produced because of the failure of the asserting party to meet its burden. If it makes this showing, and the requesting party still contests the assertion of privilege/protection, then the dispute is ready to submit to the court, which, after looking at the evidentiary support offered by the asserting party, can either rule on the merits of the claim or order that the disputed documents be produced for in camera inspection.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *11 (D.Md. May 29, 2008 ).

Posted in 4th Circuit, Attorney Client Privilege, Case Blurbs, D. Md., FRCP 26(b), Magistrate Judge Paul W. Grimm, Privilege Log | Tagged: , | Leave a Comment »

Case Blurb: Creative Pipe; Factors for determining the proper assertion of the attorney-client privilege

Posted by rjbiii on June 15, 2008

[I]n order for the court to determine whether the attorney-client privilege was properly asserted regarding a particular document, the court must make the following fact determinations:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *5 (D.Md. May 29, 2008 ) (omitting internal citations).

Posted in 4th Circuit, Attorney Client Privilege, Case Blurbs, D. Md., Magistrate Judge Paul W. Grimm | Tagged: , | Leave a Comment »

Case Blurb: Creative Pipe; Factors for the Intermediate Balancing Test for examining whether privilege has been waived

Posted by rjbiii on June 15, 2008

The intermediate test requires the court to balance the following factors to determine whether inadvertent production of attorney-client privileged materials waives the privilege: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the number of inadvertent disclosures; (3) the extent of the disclosures; (4) any delay in measures taken to rectify the disclosure; and (5) overriding interests in justice.

[The Producing Party]…bear[s] the burden of proving that their conduct was reasonable for purposes of assessing whether they waived attorney-client privilege…

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *5 (D.Md. May 29, 2008 ) (omitting internal citations).

Posted in 4th Circuit, Attorney Client Privilege, Case Blurbs, D. Md., Magistrate Judge Paul W. Grimm, Waiver of Privilege | Leave a Comment »

Case Blurb: Creative Pipe; Three Judicial approaches to examining waiver of privilege

Posted by rjbiii on June 15, 2008

[C]ourts have taken three different approaches when deciding whether the inadvertent production to an adversary of attorney client privileged or work-product protected materials constitutes a waiver. Under the most lenient approach there is no waiver because there has not been a knowing and intentional relinquishment of the privilege/protection; under the most strict approach, there is a waiver because once disclosed, there can no longer be any expectation of confidentiality; and under the intermediate one, the court balances a number of factors to determine whether the producing party exercised reasonable care under the circumstances to prevent against disclosure of privileged and protected information, and if so, there is no waiver.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *4 (D.Md. May 29, 2008 )

Posted in 4th Circuit, Attorney Client Privilege, Case Blurbs, D. Md., Magistrate Judge Paul W. Grimm, Waiver of Privilege | Tagged: , | Leave a Comment »

DataKos: Maintaining Privilege Moves to the Forefront

Posted by rjbiii on December 19, 2007

Contending that avoiding inadvertent disclosure of privileged documents will become the top EDD risk of 2008, DataKos opines:

There is much uncertainty, even among many lawyers, as to when the attorney-client privilege should be invoked or asserted. Let’s face it, business people, and lawyers too, insist on using email for everything. Hence, operationally, there are numerous challenges we all face in protecting confidential information from leaking through email forwarded to third parties.

Citing the adoption of new FRE 502, and the privilege waiver concerns dogging generals counsel, DataKos urges IT & RIM professionals to become acquainted with the issues.

Posted in Articles, Attorney Client Privilege, Data Management, FRE 502, Inadvertent Waiver of Privilege | Tagged: | Leave a Comment »