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An article by Sepideh Esmaili Smith posted on the Quarles & Brady website, E-Discovery Bytes.
This article discusses the use of technology during the attorney review process, and the need for attorneys to actively manage that process. This article discusses a case in which a law firm marked documents as privileged in a database during the review phase, and mistakenly thought that would prevent the documents from being produced to opposing counsel. The documents tagged privileged were in fact produced, and the producing law firm failed to become aware of the error for 9 months. Coupled with the fact that the producing firm also failed to provide a privilege log for another four months after learning of the error, resulted in the court understandably determining that a waiver of privilege had taken place.
The author states, "Thorncreek Apartments III, LLC v. Village of Park Forest, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011), the court was faced with a defense counsel who "thought" that merely marking documents as privileged in an electronic database would keep them safe from production."
The article provides advice to attorneys, and also offers explanation around each of the following points:
"1. Attorneys must take precautions to protect electronic disclosure of privileged documents. They should never presume that merely marking documents as privileged in an electronic database will prevent their production.
2. Attorneys should produce privilege logs close to the time when a production is made. It will act as a check on whether documents have inadvertently been produced and alert opposing counsel to a document's privileged status.
3. Where inadvertent production of privileged documents has occurred, counsel must immediately take steps to rectify the error in order to protect and maintain privilege."
P.S. Don't wait if you learn of an error, the faster you act the more likely the court is to forgive the mistake.
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