The attorney-client privilege plays a vital role in the legal profession and is in fact a client’s prerogative to hold the privilege. An attorney merely acts as a guardian for the confidential communications made by the client to the attorney in course of obtaining legal advice or representation. Hence, there is an ethical obligation on the attorney to ensure that the client confidences are not disclosed without the authority of the client. Another aspect is the inadvertent disclosure of privilege information. In the current age of electronically stored information (ESI), safeguarding the attorney-client privilege is immensely problematic. In spite of the techno-revolution and invention of sophisticated software tools to review documents, the risk of inadvertent disclosure of privilege information has been on the rise simply because of the sheer volumes and complexity of ESI. Many US jurisdictions support the view that the inadvertent disclosure of a client’s confidences can result in privilege waiver and same can be introduced as evidence in trial. Therefore, the consequences of inadvertent disclosure of privilege information could be quite damning. Common approach of Courts in deciding an inadvertent disclosure is based upon the reasonable efforts or precautions taken by the producing party to avoid the inadvertent disclosure and also sometimes, on the speed at which the party seeks to retrieve the documents or information produced. It is also suggested that attorneys draft agreements regulating the effect of an intentional waiver or inadvertent disclosure and seek a Court order incorporating the same.
Therefore, a major area that requires particular attention while dealing with e-discovery is during the Privilege review process. It is a crucial component of e-discovery process which is an immensely onerous, time consuming and expensive task. There is every chance that privileged documents are inadvertently produced simply because of the sheer volumes of documents involved. The bottom line is that the litigants must proceed with abundant caution while reviewing for privilege information, be diligent in retrieving privileged information and finally, act wisely at the incipient stages of the proceeding by seeking claw-back agreements.
Outsourcing document review to a dedicated team who are thoroughly proficient in privilege review would absolutely shrink the chances of the inadvertent disclosure of privilege information and would absolutely relieve the attorneys of the discovery nightmare. We at LexHawk are a dedicated team of innovative electronic discovery attorneys with systematic understanding on the electronic discovery process – litigation readiness, preservation, collection, review, and document production. Attorneys at LexHawk have thorough knowledge on the attorney client, work product and joint defense doctrines and have been involved in privilege review and privilege logging.