Intellectual Property Technology Law

One aspect of any litigation, be it internet litigation, software litigation, any any other type, is the production of documents in discovery.  Accompanying this necessary procedure is the fear and stomach-wrenching possiblity of the inadvertent production of privileged materials.  Nothing will make an attorney or a client go pale faster than realzing that they've produced to opposinig counsel a correspondence between client and attorney.  The proliferation of electronically stored information (ESI) and e-mail communications between attorney and client makes this an even greater risk.  Additionally, if you have an attorney in house that fills the role of both counsel and business person, the possiblity of an indavertent production of privileged material increases.  

Luckily, FRCP 502(b) protects against this likelihood.  The reality is that these types of production are going to happen, especially when dealing with electronic discovery.  502(b) provide that the disclosure of privileged communication will not operate as a waiver if it is inadverent, the holder of the privilege took reasonable steps to prevent disclosure, and the holder promptly took reasonable steps to rectify the error when production occurs.  

"Reasonable steps" is one of those greatly amorphous legal terms that lawmakers love to put in statutes or rules.  What is going to constitute a "reasonable step" is going to be in the eye of the beholder (most likely your judge).   But there are some things that may help you.  Keep some of the following in mind: 

• limit the number of receipients on communications to counsel to only those that are necessary for the communication
• If you have an in-house counsel who wears more than one hat, make sure that all e-mail to him in his legal counsel capacity are specifically identifed as such.
• Only put "privileged" on those e-mails that are truly privileged.  Don't include it on all regular e-mails.
• Clearly identify e-mails and subject lines to assist in future searches. 
• Keep a list of attorneys and legal professionals that are utilzedby your company to assist with future searches. 

Keep in mind your reasonableness in determining what steps to take in dealing with electronic discovery.  Whether you are writing your litigation attorney, your securities attorney, your probate attorney, or any other legal counsel, the steps you take now will protect your confidential material in the future.