by Jeff Stoneking
We speak about privilege with clients as the core of what we do – we protect it at all costs, create defensible processes to show what exactly it is, and never, under any circumstances, produce those documents. We wouldn’t be in business long if we did.
We’ve actually created presentations on this subject with Todd Presnell at Bradley Arant Boult Cummings, who has a popular blog on the subject (Presnell on Privileges). In fact, we’ll be in Chicago on May 17 presenting an ethics CLE about privilege (email me for more information).
The point is, in today’s world privilege can be a moving target. As seen in a recent ruling by a federal magistrate judge in Virginia, attorney-client privilege was waived when unsecured, confidential information was posted to a file-sharing website. The court ruled that was similar to leaving the file on a “bench in the public square” and despite being accidental, the decision stood.
File-sharing platforms are commonly used tools, so this probably sets off alarm bells for many especially since this was inadvertent. It shows that there must be clear processes in place from beginning to end of a matter, a thorough understanding of who is handling documents, and a diligence surrounding the protection of data that is adhered to by in-house and outside counsel, employees, and review and technology partners.
If you don’t feel great about your (or your partners’) QC, data access, data security and chain of custody protocols, it’s a great incentive to review or ask about them.