Privilege

In my experience as an e-discovery project manager, I’ve found that one of the primary reasons for lengthy document reviews is the need to redact documents. While the extent to which redactions will be needed may not be known at the outset of a review, good project management should include recognizing when and what type of redactions may be needed. Factors to consider include the type of case, the extensive nature of the collection process, the type of files processed for review, the stipulations agreed to in the ESI protocol and protective order, the sophistication of the legal teams involved, the contentious nature of the dispute and, perhaps of equal importance, the technology available to apply those redactions.

Waiver of privilege and particularly inadvertent waiver of privilege is always a concern in e-discovery when producing documents to an outside party. Not only may your current litigation be affected but waiver may also affect your client’s future litigations and other litigation teams that had no involvement with your production. This is a particularly serious concern when producing documents to the government, given the power dynamics involved.

One of the greatest fears in any litigation matter is that you will somehow accidentally produce work product or attorney-client privileged documents to the opposing side and waive the privilege. As a result, it has become standard protocol for parties to enter into clawback agreements that protect sensitive electronically stored information (ESI). Clawback agreements allow parties to agree that the inadvertent production of privileged information will not automatically waive the privilege and provide a process for the return or destruction of that privileged material.