Holistic Privilege Protection: Protecting Privilege by Taking “Reasonable Steps” Throughout the Process of Production

By K&L Gates partner Todd Nunn.

This article appears in the summer edition of DRI’s E-Discovery Connection, and begins:

There are now rules specifically designed to protect the attorney-client privilege during document production:  Federal Rule of Civil Procedure 26(b)(5) and Federal Rules of Evidence 502.  These rules provide a procedure for clawing back inadvertently produced attorney-client privilege and work product documents and a consistent framework for determining whether the privilege was waived.  However, protection of privilege remains one of the primary concerns, and cost drivers, of parties producing documents in discovery.

The goals of the holistic approach to privilege protection are to protect attorney-client privilege and work product documents from being produced.  Further, in the event of production, the goal is to have taken “reasonable steps” to protect the privilege from waiver under Federal Rules of Evidence 502(b).  The goal is to do this while also producing documents that are responsive to discovery requests in a timely and economical way.  This is made more challenging by the increasing volumes of electronically stored information (“ESI”) that must be screened for privilege.

Read a copy of the full article here.