Privilege, Privacy, and Waiver

Privilege

PrivilegeAttorney/Client

In the law of evidence, a client's privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it. In federal courts, state law is

applied with respect to such privilege.

Privilege

Work Productthe writings, notes, memoranda, reports on conversations with the client or witness, research, and confidential materials which an attorney has developed while representing a client, particularly in preparation for trial. A "work product" may not be demanded or subpenaed by the opposing party, as are documents, letters by and from third parties and other evidence, since the work product reflects the confidential strategy, tactics and theories to be employed by the attorney.

Privilege

Attorney/ClientWork Product

Privacy

Privacy

. . . is a State of Mind!

Waiver

Waiver

Document Waiver

Waiver

Subject Matter Waiver

Waiver

Document WaiverSubject Matter Waiver

Non-Waiver Agreements

Non-Waiver Agreements“Claw Back” Agreement

A formal understanding between parties that production of privileged and protected information is presumed to be inadvertent and does not automatically waive the privilege…the receiving party must return or destroy the material until the privilege issue is resolved

Non-Waiver Agreements“Quick Peek” Agreement

A requesting party’s counsel is allowed to see a responding party’s data collection before production and designate those items which they believe are responsive to the discovery requests. Privileged info found by the requesting party is presumed inadvertent and does not constitute a waiver…producing party then reviews the assumed smaller set for responsiveness and produces the docs that are responsive, but not privileged.

Non-Waiver Agreements“Claw Back” and “Quick Peek” Agreements

These agreements can significantly limit the burden and cost associated with privilege reviews in large ESI cases. However, they are not without their risk…

Still, with the volume of electronically stored information, inadvertent disclosure is almost inevitable, with potentially devastating results.

Federal Rules of EvidenceRule 502

The rule provides that privilege is not waived when privileged communications are inadvertently disclosed, provided the holder of the privilege took "reasonable steps" to prevent disclosure and to rectify the error.