Labels | Banners
Computers can influence the legal posture of an internal investigation.
Two legal doctrines can shield investigation-related communications from disclosure in court or in pre-trial e-discovery. The first doctrine is attorney-client privilege, which ensures that communications between an attorney and his client remain confidential. The second doctrine is attorney work-product, which prevents disclosure to adversaries of materials prepared by an attorney for a client in anticipation of litigation.
The scope of these two doctrines can be controversial in particular cases. Often, courts hold that records of a routine internal audit (or business audit) within an enterprise are not protected by either doctrine, even though a lawyer may have been involved or litigation may have been one of the reasons for the audit. Edna Selan Epstein, The attorney-client privilege and the work-product doctrine, Volume 1, page 356 et seq.
The division between a mere internal audit, on the one hand, and a protected communication or record, on the other, can be open to interpretation.
That interpretation can be influenced by labels, notices and designations. A tag or notice on a report declaring that it is protected can help persuade a court that in fact it is entitled to protection. Example: “Confidential. This record is protected attorney-client communication and attorney work product to formulate legal advice in preparation for dispute.”
According to a leading legal commentator, a notice declaring attorney-client privilege is “like chicken soup” for an illness. Though it's not guaranteed to succeed as a self-fulfilling declaration of legal status, it might help and normally won't hurt. Edna Selan Epstein, The attorney-client privilege and the work-product doctrine, Volume 1 , 2007, page 877.
Such a notice tends to show the belief, mindset and intention of the parties at the time, all critical factors in determining whether the privilege exists in a given situation. "The professional relationship for purposes of the privilege hinges upon the belief that one is consulting a lawyer and his intention to seek legal advice.” Wylie v. Marley Co., 891 F.2d 1463, 1471 (10th Cir. 1989).
Liberal posting of labels, notices and designations is easier with computer technology. Computers can facilitate the recording of investigative activities like meetings and interviews – in such a way that the proceedings are labeled as protected. For example, a meeting can be held by video conference, online text forum or virtual meeting space, where all activities are recorded and a banner reads, “Confidential. This is protected attorney-client communication and attorney work product to formulate legal advice in preparation for dispute.”
Computer video enables easy recording of in-person meetings, where displays of the meetings distributed to participants show the protection banner. (Some might call the placement of such a banner on a video display an example of augmented reality. Wired Magazine suggests that tablet computers like iPad will become like windows on the world, where, for instance, users prop them up in a live meeting to record it and see the banners and other augmentation that enrich the experience. Steven Levy, “Tabula Rasa: Why the new generation of tablet computers changes everything,” Wired, April 2010.)
The absence of a lawyer's participation in the preparation of a report reduces the likelihood a court would consider it an attorney work product. Edna Selan Epstein, The attorney-client privilege and the work-product doctrine, Volume 1, page 918. The reason is that the work product doctrine is intended to prevent disclosure of the lawyer's thinking, and nothing more. The earmark of a report containing a lawyer's thinking is her participation in the creation of it.
Substantive involvement of a lawyer in the creation of a report is easier and less expensive with computer communication. For instance, computer communication allows a remote lawyer to peer in on a meeting via video; he might be observing and occasionally commenting from a small window opened on his desktop monitor while he simultaneously attends to other projects. Computers can allow a distant lawyer periodically to review the activities of an e-discovery specialist as she searches through email archives. This video demonstrates a remote lawyer participating in an interview via webcam on his laptop:
Technology allows logging of the specifics of a lawyer's active participation (e.g., lawyer viewed at x time, submitted comment or instruction at y time), together with a banner showing belief and intention that the report is attorney work product.
Attorney Wright teaches the Law of Data Security and Investigations at the SANS Institute.