Attorney-Client Privilege in the Age of Digital Leaks, Peeks and Breaches

Posted on 09-30-2014 by
Tags: Lexis Practice Advisor enhancements , clients , Latest Headlines & Stories

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Massive. The word almost seems inadequate. Maybe colossal or astronomical would be better. Anyway, “a lot” of data has been gathered, breached, lost and leaked in recent months at a rate, it’s safe to say, surpassing any other time in our history. The unintended consequences are many, ranging from violations of privacy to loss of trade secrets to loss of life if a government intelligence agency’s clandestine operations are revealed. 

In the legal world, the consequences could be the compromise of information protected by attorney-client privilege, which, in turn, can cause a ripple of other consequences. It could even mean winning or losing a multi-million-dollar case.

No matter how you slice it, the unauthorized release of company information is bad news for a company or any party in litigation, “but that does not tell us whether the privilege is waived for purposes of litigation,” Paula Schaefer, Associate Professor at the University of Tennessee College of Law in Knoxville, told The Advisory during a recent interview.

“The waiver issue arises when the company is later involved in litigation AND opposing counsel tries to use a disclosed document (e.g., attaches it to a motion, pulls it out in a deposition, etc.), Professor Schaefer said.  “At that point, the company would need to seek a ruling from the court that privilege has not been waived even though the document had been disclosed to the public at some point in the past by someone without authority to do so.”

Formerly a litigator at both Shook, Hardy & Bacon and Bryan Cave, Schaefer said resolution of the issue could turn on whether the company establishes that the disclosure was “truly unauthorized” and that the company took “reasonable precautions” to prevent disclosure. “The biggest strike against the company in such a case would be that the documents were disclosed. For this reason, some judges may conclude the precautions taken to prevent disclosure were not reasonable so the privilege is waived. But other judges might look at the same facts and find the disclosure happened despite the company’s reasonable efforts and thus conclude that privilege is not waived.”

“I think it is difficult for a company to know with any degree of certainty whether a court would find privilege waived,” she said.

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