The writing is on the wall with the attorney-client privilege and Federal Rules of Evidence 502. A review of current e-mail policy may also be in order at your institution if you plan on achieving "A Defensible Standard of Care."
On December 11, 2007, Senator Patrick Leahy, Chair of the Senate Judiciary Committee, introduced S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007.
Here are comments by the BLT:
If approved, the legislation would allow litigants to avoid waiving privilege on inadvertent disclosures if parties took reasonable efforts to vet the documents and asked for the return of any privileged information in a timely manner.
"The surging use of email and other electronic media has forced parties to spend billions of dollars and countless hours to guard against the unintentional release of such information," Leahy's office reported. Specter added that the new rule would help ensure that "the wheels of justice will not become bogged down in the mud of discovery.”
In case you haven't noticed your CIO in the General Counsel's office lately, you soon will. The use of automated tools for Electronic Content Management (ECM) have converged with the tools for Disaster Recovery Management (DRM). In the middle of the pile of documents, email and other electronically stored information (ESI) is something called effective Records Management.
Stephen D. Whetstone, Esq. of Stratify says this:
Given the increased risks and costs, it is no surprise that many companies are trying to wrest control over the discovery process. More companies are now directing outside their counsel to leverage technology to automatically organize huge data collections, help understand foreign languages and detect privilege and thereby drive down the costs and mistakes that result from fatigued human review. The rule-makers get it, too. The Advisory Committee Notes to proposed FRE 502 provide: "Depending on the circumstances, a party that uses advanced analytical software application and linguistic tools in screening for privilege and work product may be found to have taken 'reasonable steps' to prevent inadvertent disclosure."
In short, in the 12 months since adoption of the new discovery rules, the sky did not fall. But, for some, it grew darker and more expensive to prop up.
Managing information that is discoverable through email from Party A to Party B using the internal e-mail system provided by the employer to the third parties outside of the organization including lawyers is the nexus here. How can an organization make sense of it all and keep the GC from pointing fingers at the CIO?
The answer begins with building awareness and education with all employees in the organization, not just the legal staff and IT. It begins the moment any employee opens the word doc or excel spreadsheet. The second you reply to that IM or e-mail on your PDA . Only through effective education and policy management will the enterprise learn how to modify behavior regardless of what tools and systems are put in place to organize, sort and query ESI.
"Whether building the castle walls or defending the crown jewels, knowing the right questions can make all of the difference."