Privilege

Protecting privileges.

May 29, 2022

Historical ESI Highlights – Part VI – Victor Stanley and Keyword Searching

The prior blog discussed the historical acceptance of technology assisted review.  However, keyword searching remains an important and useful tool.  Mark Twain wrote: “The reports of my death are greatly exaggerated….”  The same may be true of keyword searching. While there are many decisions and articles on keyword searching, one of the […]
May 27, 2022

Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502

Protection of privilege and work product material is costly and complex when it is buried in voluminous ESI. An opinion of the Hon. Paul W. Grimm, Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005), prompted Congress to change the law and enact Fed.R.Evid. 502. Fed.R.Civ.P. 26(b)(5) created the “clawback” […]
May 16, 2022

Information Governance – Mis(?)-Labeling Documents as Privileged (Part IV)

Google’s “communicate with care” program has garnered a lot of attention.[1] It allegedly instructed employees to label any written communications on a certain topic as privileged and send them to in-house counsel.  The Department of Justice sought sanctions and an order compelling disclosure, asserting that the policy was pretextual. Google replied that […]
April 9, 2022

Information Governance – Mis(?)-Labeling Documents as Privileged (Part III)

When the Department of Justice alleged that Alphabet Inc.’s Google was camouflaging ordinary documents as privileged, I – and many others – posted abut information governance.  When Google responded that the government’s allegation was “baseless” and that it had spent 21,000 hours on privilege review, I also reported that.  Information Governance – […]
April 2, 2022

Maryland v. Federal Clawback and Privilege Non-Waiver Rules

I have written about several differences between the Maryland Rules and the Federal Rules of Civil Procedure.  See  Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties, Maryland v. Federal Summary Judgment Rule, and  M. Berman & A. Shelton,  “Commentary: With ESI, difference between federal, state rules,” The Daily Record (June […]
March 26, 2022

Discovery of Steps Taken to Implement a Litigation Hold is Permitted

Much has been written about the discoverability of litigation hold notices. Are Litigation Hold Notices Discoverable?,  When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective, and When is a Litigation Hold Notice Discoverable? The flip side of the coin is whether the steps taken by a potential […]
March 23, 2022

Information Governance – Mis(?)-Labeling Documents as Privileged

Mar. 25, 2022 UPDATE: B. Ford and M. Bergen, Google Disputes DOJ Claim It Hid Documents in Lawyer Emails (bloomberglaw.com) (Mar. 24, 2022). Alphabet Inc.’s Google is pushing back on U.S. Justice Department claims that it improperly used attorney-client privilege to conceal documents in the government’s monopoly lawsuit against the company. “None of the […]
November 17, 2021

Categorical Privilege Log Presented Interpretive Issues

Categorical privilege logs can save time and money.  “The concept of categorical privilege logs in connection with ESI is not new.”  M. Berman, et al., eds., “Managing E-Discovery and ESI” (ABA 2011), 356; Blog, Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun – E-Discovery LLC (ediscoveryllc.com) (Mar. 25, 2021). […]
August 30, 2021

Expanding Privilege Protection to Fill the Gaps Left by Fed.R.Evid. 502

Federal Rule of Evidence 502 was passed in 2008 by a unanimous vote in the Senate, overwhelmingly in the House, and signed by President George W. Bush.  Anything with that degree of support has to be good and Rule 502 provides substantial and necessary benefits. An excellent publication describes the rule in […]
August 27, 2021

Waiver of Work Product Protection in Deposition Preparation Sessions

In Johnson v. Baltimore Police Dept., 2021 WL 1985014 (D. Md. May 18, 2021) (Boardman, J.), the Court addressed waiver of work product protection by showing documents to a third-party witness in deposition preparation. Twice before the deposition, plaintiff’s counsel showed three documents, several photographs, and one audio file to the deponent.  […]
March 25, 2021

Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun

It is axiomatic that privilege logging is one of the most time-consuming and risky aspects of e-discovery. I wrote about itemized and categorical privilege logs in M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), Chap. 5.  In an itemized log, every email and every attachment […]
March 16, 2021

Electronic Communications to a Class Action Advertising Web Site Deemed Not Privileged

Top Class Actions (“TCA”) ran a website “that provides information, among other things, about class actions, class action settlements, and class action investigations.”  The site contained attorney advertising and articles concerning class actions and mass torts.  Defendants served a subpoena on TCA seeking, among other things, communications from claimants and with law […]
March 12, 2021

Can a Lawyer Ethically “Reply All” to an Opposing Client?

New Jersey Ethics Opinion 739 (Mar. 10, 2021), again points to the dangers of copying one’s client on communications to opposing counsel. I discussed the ethical dangers of attorneys using “reply all” in a prior post.  If an attorney “cc’s” the attorney’s client on a communication to opposing counsel, what happens when […]
February 14, 2021

Marc Hirschfeld’s Legal Week Presentation

Marc Hirschfeld’s presentation at Legal Week, “Navigating the Pitfalls of E-Discovery for Boutique Litigators,” is well worth watching on Vimeo and Legal Week. Marc is the owner and president of Precision Legal Services.  Marc and I have collaborated on many projects. Marc discusses a number of topics in the one-hour video.  Among […]
January 16, 2021

Courts Cannot Order a “Quick Peek” Without Consent

In U.S. Equal Employment Opp. Comm’n. v. The George Washington University, 2020 WL 3489478 (D.D.C. June 26, 2020), the court held that a party cannot be ordered to provide a “quick peek” without its consent.  In doing so, it carefully analyzed and rejected contrary precedent. In Fairholme Funds, Inc. v. U.S., 134 […]
December 27, 2020

Searching for Privileged Information

As if searching for privileged information prior to production was not already difficult enough, Jessica A. Huse, Esq., has blogged about a potential complication.  See J. Huse, “Pushing the Limit: The District of Oregon Concludes that the Attorney-Client Privilege May Apply to Communications Not Involving Attorneys” (Gibbons Law Alert Dec. 22, 2020). […]
December 1, 2020

When is a Litigation Hold Notice Discoverable?

A recent ABA practice point described Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc., 2020 NY Slip Op 20133, ¶ 2, 69 Misc. 3d 209, 126 N.Y.S.3d 873, 875 (Sup. Ct.) (decided June 9, 2020) (Masler, J.). In Radiation Oncology, the court addressed when a litigation hold […]