The volumes of evidence available for litigation are such that privileged documents – a small but important subset of any evidence collection – can easily be overlooked, commingled, misplaced, or simply lost. In addition, the expanded role of in-house attorneys in the day-to-day business of corporations makes it increasingly difficult to separate privileged documents from other business communications.

Because of this, privilege review is one of the single largest costs associated with ediscovery. It’s caused millions of dollars in losses and destroyed countless cases, including some high-profile litigation.

Recently, we shared an excerpt from our eGuide on protecting privilege that explored real-world applications of privilege rules and standards in our modern digital era. In Part 2 of this series, we’re sharing an excerpt that shares practical tips for protecting attorney-client privilege. Click here to download the full free eGuide.

The Rules for Protecting Privilege

Here are five key rules you should always remember when it comes to attorney-client privilege. Any major privilege disaster (like the Alex Jones case) results from attorneys failing to follow these core rules.

Rule 1: Make an Effort

That may be good advice for anything in life, but it is also a specific command the courts have repeatedly delivered in privilege-related matters. Too often, lawyers produce evidence in litigation and, when they find out privileged information was given to opposing counsel, they try to get it back, arguing that the production was an accident. However, without being able to prove you made an effort to protect data, such as encryption or multi-factor authentication, the court may have little sympathy.

Rule 2: Privilege is Earned

The purpose of the attorney-client privilege is to encourage clients to communicate freely with their attorneys. However, if your legal team doesn’t defend privilege, consider it waived. If privileged materials are leaked or inadvertently produced, immediately file a motion to suppress or sequester. If your team receives such documents, keep detailed records related to how you have handled the documents and responded to opposing counsel. If they fail to respond or rectify the error, you may be entitled to keep all of the files.

Rule 3: Protect Drafts and Attachments

Remember to scan your document production for email attachments and duplicates. Inadvertently produced attachments have destroyed several prominent cases.

Rule 4: Keep a Detailed Privilege Log

One recurring theme in cases of privilege waiver is that many parties do not keep a complete privilege log. Keeping a privilege log is nothing more than creating a document that describes documents or other items withheld from production in a lawsuit because of attorney-client privilege. It will be a vital tool in identifying any privileged materials if a dispute arises.

Rule 5: Fix the Problem Fast

If a party accidentally produces privileged information, the court must see evidence of sufficient effort to prevent that failure. That is, parties have to demonstrate that they have identified a privilege leak and took immediate and extensive efforts to rectify the situation. In practice, courts want to see that the producing party notified the error quickly and responded immediately to sequester the information, including filing the appropriate motions to recover the information.

Technical Tips for Protecting Privilege

Technology is the cause for the risks described in Part 1 of our privilege series, but it can also provide solutions. There are simple precautions that can minimize your risks and help protect confidential information in litigation. Here are some practical, technical tips that your legal team can utilize to protect attorney-client privilege.

1. First, your legal department or team must consider the security of all communications systems it uses. Given the sensitivity of the information they protect, it is essential to consider the security protections available and how long data is retained on systems.
2. Ensure that employees use a company-approved litigation application or file-sharing service, subject to the most strict security controls available within the service. For example, as in the Harleysville matter mentioned in Part 1, access to confidential files should have been restricted with passwords and multi-factor authentication.
3. Beyond the need for password protections, Harleysville also illustrates the risk in making files accessible for a longer period than necessary. Enforcing time limits can prevent unauthorized users from downloading files after a matter is done. Some services offer settings that automatically delete files after a specified period.
4. Another potential security control is to limit access to folders within the service to persons designated as authorized users.
   1. For external users, limit permitted users to viewing only that information to which they are intended to have access.
   2. For internal users, limited access can serve to enforce ethical walls and need-to-know policies within the firm or company.
5. As a further precaution, require that confidential information be encrypted before it is placed in a file-sharing service. That way, only intended recipients who have been given both access to the folder within the file-sharing service and the encryption key can access the sensitive information.

Federal Rules Relating to Privilege

After 2015 amendments to the Federal Rules of Civil Procedure, a discovery plan must now state the parties’ views and proposals on both electronically stored information preservation and orders protecting against waiver of the attorney-client privilege.

Previously, discussions regarding ESI preservation could be completed at the meet and confer. Additionally, the parties must consider seeking a 502(d) order to protect against waiver of the attorney-client privilege or work product protection under amended Rule 26(f)(3) (d). The amendments to the provisions on discovery plans are designed to encourage the early identification and resolution of potential disputes.

Here are some of the key federal rules regarding privilege that all attorneys should understand, especially in ESI-heavy cases where privileged information can easily be mixed up with other disclosures.

FRE 502(a) – Disclosure Made In A Federal Proceeding Or To A Federal Office Or Agency; Scope of a Waiver

This rule limits waiver of privilege to the communication or materials disclosed, and not to the entire subject matter of communication. The scope of any waiver is therefore confined to the information disclosed unless “fairness” requires further disclosure.

FRE 502(b) – Inadvertent Disclosure

Federal Rules of Evidence 502(b) states that accidental disclosure, “will not operate as a waiver in a Federal or State proceeding if the holder of the privilege or protection took reasonable steps to prevent disclosure and ... promptly took reasonable steps to rectify the error.”

FRE 502(c) – Disclosure Made In A State Proceeding

Rule 502(c) addresses circumstances where disclosure was first made in a state proceeding and is later considered in a federal proceeding. The provision applies the federal or state law that furnishes the greatest protection to the privilege and work product.

FRE 502(d) – Controlling Effect Of A Court Order

This rule recognizes that a federal court may enter a confidentiality order providing “that the privilege or protection is not waived by disclosure connected with the litigation pending before the court.”

FRE 502(e) – Controlling Effect Of A Party Agreement

FRE 502(e) allows parties to enter into an agreement to limit the effect of any disclosure.

Protecting privilege in the age of ediscovery is still a complicated and confusing area of law. It is a cornerstone of our judicial system and vital to the interest of justice, but when a party makes any mistake in protecting privilege or fails in any aspect of controlling work product, courts frequently rule that privilege is waived.

Of course, it is possible to defend that right. It seems likely that accidental production of privileged material could happen in any case, but through a concerted effort to protect that right, lawyers can successfully defend privilege in even the most difficult discovery battles.