Reducing Your Risk of Inadvertent Disclosure

Attorneys are bound by ethics rules to protect client confidences, have competency with respect to changes in law and technology, and supervise junior attorneys and vendors. In addition, federal and state laws, international law, and specific contractual terms create obligations regarding the protection of privileged and confidential information.

These ethical and legal obligations are put to the test with the ever-increasing volume of electronically stored information (ESI) that is potentially subject to electronic discovery. Unfortunately, the volume of ESI makes it likely that, despite best efforts, inadvertent disclosures will occur. “I can virtually guarantee some privileged material will slip through,” said U.S. magistrate judge Andrew Peck.

To address this likelihood, attorneys, their support staff and litigation teams, and outside vendors need to understand what they are protecting and why, as well as how to protect against inadvertent disclosures and minimize consequences when disclosures occurs.

Using Practice Rules To Protect Privileged and Confidential Information

The Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Evidence (FRE) provide options attorneys can use to manage the disclosure, whether inadvertent or not, of privileged and confidential information. In this context, “privilege” refers to the attorney-client privilege and work product. Confidential information, such as trade secrets or personal information subject to privacy and data protection laws, is not protected by rules dealing specifically with “privilege,” though other rules do provide protections.

Achieving "Reasonableness" and Reducing Inadvertent Disclosure

Further, in the context of an FRE 502(b) evaluation, attorneys will need to have acted “reasonably.” The following practices are worth considering when structuring review and production processes, and can be useful for both meeting the “reasonableness” standard and potentially reducing the likelihood of inadvertent disclosure.

Appropriate use of technology and rules-based solutions minimizes costs and adverse effects.

Appropriate Use of Technology Reduces Costs

The steps outlined above may seem overwhelming and expensive. While technology required to effectively handle review of ESI may seem costly, attorneys and parties should remember that the cost of a review of ESI, if human beings had to perform the same function, would be many times more and take significantly more time. Learning the ins and outs of effective use of technology, coupled with proper use of practice rules, protects privileged and confidential information and reduces costs.

This whitepaper is not intended to provide any legal advice.

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