Electronic Data Records Law | How to Win E-Discovery

Attorney-Client Privilege | Work Product

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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.”

Privilege

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.)

Work Product

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.

–Benjamin Wright

Attorney Wright teaches the Law of Data Security and Investigations at the SANS Institute.

Update 2013: An experienced trial lawyer advised me that normally you would not want to claim privilege and work product in the same record.  The record is subject to either one or the other but not both.  If you claim both a court might conclude you did not pecisely apply either the privilege doctrine or the work product doctrine.

Custom Professional Training

Tutorials | Questions Answered

Price | Professional Credit | E-Policy Workshop

Many professionals who visit this blog are looking for education on electronic records or technology law. Mr. Wright can deliver custom tutorials on the topics important to you right now.  A tutorial can be one hour, two hours, a half-day, or more.

Benjamin Wright has much experience training professionals on such topics as e-discovery, e-record privacy, data security law, cyber defense investigations, record retention policies, BYOD, e-commerce records and contracts, and more.

Now he delivers this continuing professional education on a tailored, as-needed basis.  Tell him what interests you, and he will work with you to develop a curriculum and a delivery plan.  The number of students could be one, two, 100, or more.

The method of delivery could be Webex, on-site, telephone conference, or something else, depending your needs and resources. A tutorial could combine lecture and interactive Q & A.

To discuss, please call Mr. Wright at 1.214.403.6642.


Price

Price would depend on many factors, such as the length of seminar time, the medium of delivery, out-of-pocket expenses, and the amount of advanced preparation involved.  A one-hour briefing by Mr. Wright to a small audience (delivered by telephone call you initiate) on a topic for which he already has material, could cost as little as $375.


Continuing Professional Education Credit

Many professionals – auditors, lawyers, investigators, accountants, records managers, security professionals -- need continuing professional education (CPE and CLE) hours.  Mr. Wright's tutorials are of a quality to support the granting of credit.  Mr. Wright will be happy to sign a letter confirming that any particular professional participated in a seminar.  However, the application for and obtaining of credit will be the responsibility of the individual professional.

Rules for continuing legal education credit vary by jurisdiction.  Often an attorney can obtain credit by applying for it after attending a seminar.


Policy Workshop

Mr. Wright and Messaging Architects deliver an in-house workshop for developing enterprise policy on BYOD and the retention, destruction and management of electronic records, especially e-mail.

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Statement from Andrew Scygiel, Merck & Co., Inc. to Mr. Wright:  "Thanks again for a great class and very insightful information.  You have really changed my view of records and I have 'aspired' to be much more aware of our policy and how today's climate can affect us."

As senior legal instructor at the SANS Institute, Mr. Wright emphasizes that -- in response to an IT security incident -- an effective public message is just as critical as the technical and legal responses.

Electronic Mail Erased

Spoliation in Electronic Records Law | Sanctions

In records management one school of thought says employees should be expected to examine each of their e-mail, instant and text messages and make records retention decisions.  Under this school, the decisions are 1. do we keep this message or allow our IT system to destroy it quickly, and 2. if we do keep this message, do we keep it in retention category A, category B or category C. I'll call this the make-a-decision school of thought.  See the good discussion. 

Generally speaking I am skeptical of the make-a-decision school of thought.  The reason is that – in this Age of Information – few employees have the time, talent or disposition to make good decisions. The growth in the number of digital messages touching employees is accelerating.  The growth will continue to accelerate.

Cases show the legal system punishing enterprises for destroying records too early under the make-a-decision approach.

Arthur Andersen's formal records policy expected its professional auditors to make lots of records decisions (keep this record, destroy that record).  But AA's auditors were too busy doing their day jobs, so they procrastinated about making decisions on records related to their biggest client, Enron.  In other words, the digital age had swamped Andersen's employees with too many e-mails, faxes and papers. Therefore, they accumulated a backlog of records . . . records that demanded decisions, boring tedious decisions that employees hate.  (Keep it or destroy it? Keep it or destroy it?  Keep it or destroy it). Then, when crisis rose at Enron, AA's employees deliberated about what to do with this backlog.  They deliberated about how to interpret their record retention policy in this unexpected situation, and then (with the involvement of qualified counsel) they made decisions that later looked bad.  Andersen's employees destroyed records in the good-faith belief that they were following their policy consistent with advice of counsel. The legal system proceeded to destroy Andersen.

Another case: In Broccoli v. Echostar Communications Corp., 229 F.R.D. 506 (D.Md. 2005), employee Broccoli complained to management that a superior was harassing him sexually. Multiple managers discussed this complaint by e-mail. Later, after Broccoli sued, the employer could not produce records of the relevant e-mails exchanged among managers. The employer said its usual policy was to destroy (erase) e-mail in 21 days, and it had just followed its policy. The court sanctioned the employer for spoliating e-mail records. The court said it may be okay for a company to destroy e-mail quickly . . . so long as the company suspends destruction with respect to e-mails related to potential litigation like that brought by Mr. Broccoli. In effect the court said the employer should have applied an early litigation hold on e-mails related to Broccoli's complaint.

So what would the make-a-decision school of thought say about the Broccoli case? I interpret it to say that managers must be trained to recognize e-mails that pertain to potential litigation and then to save those e-mails specially (i.e., put them in category X). To me, that approach to e-mail retention does not normally work. Managers are ill-qualified to make such decisions. They don't have time to make those decisions with respect to the ever-growing deluge of e-messages (including cell phone texts, iPhone mail, telephone Twitters, instant message (IM) chat, BlackBerry calendar alerts, voicemails converted to text and more), coming at them.

I therefore offer a hypothesis:  Enterprises will fare better in the Age of Information if they tilt toward being very generous in their retention of electronic records . . . and tilt away from expecting individual employees to make one-by-one, keep-it-or-destroy-it records retention decisions.

This is a big topic, and it keeps me humble. I do not know everything. This post does not cover all the issues.  I aspire to explore more of the issues, and I welcome input!

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, thought leaders in e-message management.