Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: The employee in this case had a reasonable expectation of privacy in personal web-based emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems.
This is the second video by Joscelyn from the eLessons Learned series on Stengart, dealing with the March 30 New Jersey Supreme Court decision favoring privacy over waiver of attorney-client privilege.
Citation: U.S. v. Sensient Colors, Inc., 2009 WL 2905474 (D. N.J. Sept. 9, 2009).
Employee/Employer Implicated: Outside Counsel
e-Lesson Learned: To avoid waiver of attorney-client and work-product protections when producing significant amounts of data, it’s important for producing attorneys to (1) establish reasonable document review methods geared towards minimizing the amount of inadvertently produced privileged documents, and (2) conduct a prompt re-review of all produced documents upon notification that privileged documents may have been inadvertently produced.
The document reviewing attorney is charged with an unenviable task: Review thousands of documents to ensure that no privileged information is produced to opposing counsel. Given the fact that document productions may consist of thousands or even millions of pages of documents, it is not surprising that privileged documents will slip by the watchful, often weary, eye of reviewing attorneys – it is inevitable.
Not to worry, the Federal Rules of Evidence are sympathetic to those tired eyes. Inadvertently produced privileged documents do not automatically lose their privilege protection. However, it is important to note that although FRE 502 allows some wiggle room for error, the attorney for the producing party must be careful. Failing to take reasonable steps to prevent inadvertent disclosure, or failing to promptly identify privileged documents that had been produced mistakenly can result in the waiver of highly privileged documents, oftentimes a deathblow to an otherwise winnable case.
e-Lessons Learned is fast becoming the site of choice for employers, employees, judges, lawyers, and journalists who are interested in learning more about these areas without being intimidated by the complexity of the topic.In fact, organizations and event coordinators often feature e-Lessons Learned as their official e-discovery blog.To register e-Lessons Learned as the official blog of your organization or event, click here.
“The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.”
-- Robert Ambrogi, Legal Tech Blogger and creator of LawSites
"Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others."
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Tagged as: Admissibility, Claw Back, Privilege, Production of Data, Waiver, Work-Product Doctrine
