Article Protecting Privilege Claims in Discovery

• Publication year: 2016
• Pages: 22

Article Protecting Privilege Claims in Discovery Vol. 29 No. 2 Pg. 22 Utah Bar Journal April, 2016

March, 2016

Philip J. Favro, J

By all accounts, the legal profession is exhausted with eDiscovery. And who can blame lawyers for being fatigued? Today’s discovery process is a time-consuming, expensive, and generally thankless task for those involved. Moreover, many aspects of civil discovery practice can be challenging for even the most sophisticated counsel. From seeking to isolate relevant materials from massive troves of electronically stored information (ESI) to dealing with increasingly savvy adversaries and jurists, discovery often seems like a high risk / low reward practice area.

Despite these and other challenges, the importance of discovery in the digital age remains the same as in the paper era: to “narrow and clarify” the issues in dispute and to “make a trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” Hickman v. Taylor, 329 U.S. 495, 501 (1947); United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958). To satisfy these objectives, however, clients will require far better advocacy than in previous decades. Counsel must engage in better planning at the outset of litigation, have a solid grasp of the law, strategically cooperate with adversaries, and gain a better understanding of technology.

Nowhere are these new rules of engagement needed more than with protecting the attorney-client privilege in discovery. Successfully asserting the privilege in discovery can be challenging. Consider the following questions, which exemplify the complexities underlying today’s privilege issues:

• What materials must be identified on a privilege log?

• What wording should be included in Federal Rule of Evidence 502(d) orders to avoid wrangling with adversaries in federal court over whether a disclosure of privileged information was inadvertent?

• What are the key steps to ensuring that a privilege review is effectively handled?

The answers to these questions and others will often determine the fate of a privilege claim. More importantly – and getting beyond of the microcosm of discovery, a litigation outcome may turn on the resolution of a discovery dispute over a privileged document. For example, a defendant’s inadvertent production of a “smoking gun” email that it originally claimed as privileged significantly strengthened a plaintiff’s copyright infringement claims in Oracle America v. Google. See generally Oracle Am., Inc. v. Google, Inc., No. C-10-03561-WHA DMR, 2011 WL 3794892, at 9 (N.D. Cal. Aug. 26, 2011), aff’d, 2011 WL 5024457, No. C 10-03561 WHA (N.D. Cal. Oct. 20, 2011), aff’d, In re Google Inc., 462 Fed.Appx. 975, 977–78 (Fed. Circ. 2012); Philip Favro & Shawn Cheadle, The Impact of Oracle America v. Google: Are You Certain Your Emails Are Privileged?, ACC doCket, Jan/Feb 2014, at 73. Getting the privilege process right is an essential component of a successful litigation strategy.

This notion – developing an effective process for protecting the privilege in discovery – is the focus of this article. Among the issues the article covers are the approaches that counsel should consider for addressing key external-facing challenges to privilege claims. I also discuss internal-facing issues and how they can be addressed in the privilege review process.

External-Facing Privilege Issues

While the development of an effective privilege review workflow and the need to tackle other internal review issues are significant, the external issues – those which directly impact litigation a dversaries and the courts – must be addressed first. Doing so will ultimately help counsel prepare its review workflow for identifying privileged information and determine the form and content of the privilege log.

One of the principal external-facing issues that counsel should consider at the outset is how to simplify privilege log requirements. Doing so can be accomplished by working with opposing counsel and, when necessary, by seeking judicial relief...