Protecting confidential information in e-discovery

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For many years, courts and commentators have acknowledged that the attorney-client privilege is the most important privilege in our legal system. Beyond this, there is the ethical obligation to preserve confidential information, which supplements protections provided to client information by the attorney-client privilege.

Yet these protections, as central as they may be to our legal system, are not absolute. The attorney-client privilege can be waived, for instance. And confidential information loses its protected status if it is disseminated outside the attorney-client relationship. These possibilities raise a number of questions that require a careful analysis of context, content and the state of mind of a client or attorney who disseminates protected client information.

The proliferation of electronic discovery has complicated these questions even further. It borders on stating a truism to note that the vast majority of information exchanged in the business world today is generated by a computer or a computer system. Given the substantial amount of electronically stored information that is often sought in discovery, the cost of processing and reviewing electronic data can be prohibitive.

Yet, despite these costs, some review is necessary to ensure that confidential or privileged information is not disclosed to opposing counsel during the production phase. Sloppy reviews can result in an inadvertent disclosure of privileged information that gives rise to a waiver. This can have harmful consequences for both clients and attorneys.

For these reasons, it’s essential to have a thorough understanding of attorney-client privilege, the work-product doctrine and their relationship to the obligation of confidentiality.

Attorney-client privilege and the work-product doctrine

In Wisconsin, the attorney-client privilege applies if three requirements are met. First, a client must have made a confidential communication. Second, the communication must be for the purpose of facilitating the rendition of professional services. Finally, the communication must be between the client or the client’s representative and the client’s lawyer or the lawyer’s representative.

Put another way, the attorney-client privilege gives the client “a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of facilitating the rendition of professional legal services to the client.”

In all cases, the attorney-client privilege belongs to the client, not the lawyer, and can only be waived by the client. This means that an attorney’s intentional disclosure of documents that he erroneously determines not to be privileged does not constitute a waiver.

In addition to the attorney-client privilege, the work-product privilege provides qualified protection against the disclosure of specific trial-preparation materials, including records of an attorney’s thoughts. As with the attorney-client privilege, the intentional disclosure of information that is otherwise protected by the work-product privilege constitutes a waiver.

Absent a waiver, a court may only order the furnishing of work-product material following a showing of “great prejudice” that would result from nondisclosure. Unlike the attorney-client privilege, the work-product privilege belongs to lawyers as well as clients, and cannot be waived by clients alone.

Under both the attorney-client and work-product privileges, a waiver occurs when a privilege-holder attempts to prove a claim or a defense by intentionally disclosing the communication in question. Absent an intentional disclosure to a third party, the courts will rarely find that a waiver of either privilege has occurred.

The Rule of Confidentiality

In addition to safeguarding privilege, a lawyer “shall not reveal information relating to the representation of the client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted. …” This obligation requires counsel to take reasonable measures to safeguard all information that relates to his representation of his client, regardless of its source.

Here it’s important to note that the definition of confidential information is much broader than the attorney-client privilege, which only applies to communications that are intended to be confidential for the purpose of obtaining legal advice. Distinguishing confidential information is critically important in the context of electronic discovery, as the preservation or protection of privileged information does not necessarily protect against the disclosure of confidential information.  Even if confidential information is not privileged, it should be carefully protected.

In a follow-up to this article, I will not only offer suggestions for preserving, reviewing and producing confidential and privileged information that is stored electronically, but also discuss related ethical rules.