November 03, 2015 Articles

Inadvertent Disclosure in E-Discovery: How to Avoid Waiver of Privilege

Basic preventative measures can be used to heighten protection and avoid costly disputes in large-volume ESI cases

by Lisa M. Gonzalo

Today's world of emails, computer-generated documents, and electronically stored information (ESI) has changed the way we conduct discovery in modern litigation. It is no longer unusual to have thousands—or even millions—of documents exchanged between or among parties during the course of a case. See, e.g., Lennar Mare Island, LLC v. Steadfast Ins. Co., No. 2:12-cv-02182-KJM-KJN, 2015 U.S. Dist. LEXIS 108381 (E.D. Cal. Aug. 17, 2015) (several hundred thousand documents); In re IndyMac Mortg.-Backed Sec. Litig., No. 09-cv-4583, 2015 U.S. Dist. LEXIS 37052 (S.D.N.Y. Mar. 24, 2015) (11 million documents); In re E.I. du Pont de Nemours & Co. C-8 Pers. Injury Litig., No. 2:13-md-2433, 2015 U.S. Dist. LEXIS 29928 (S.D. Ohio Mar. 10, 2015) (over one million documents); Zabell v. Medpace, Inc., No. 13-252-SJD-JGW, 2015 U.S. Dist. LEXIS 27069 (S.D. Ohio Mar. 5, 2015) (80,000 documents); In re Processed Egg Prods. Antitrust Litig., 302 F.R.D. 339 (E.D. Pa. 2014) (over one million documents).

Juxtapose this modern reality of voluminous e-discovery with the age-old and sacred protection of client confidentiality afforded by the attorney-client privilege, which "contributes to the trust that is the hallmark of the client-lawyer relationship." Model Rules of Prof'l Conduct R. 1.6 cmt. 2. Consider also the work product doctrine, which protects from discovery attorney notes, observations, and thought processes relating to the client representation. Finding these kinds of privileged documents when faced with a universe of thousands or even millions of client documents that need to be collected for possible production can be like finding a needle in a haystack. Before the age of e-discovery, traditional document-by-document review during collection was not the daunting task it is today.

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