Attorney–Client Privilege in Electronic Communications
Effective Strategies for Preserving the Privilege and Maintaining Confidentiality
Recording of a 90-minute CLE teleconference with Q&A
Conducted on Wednesday, January 21, 2009
Recorded event now available
This seminar will examine attorney-client privilege in the context of electronic communications, the different ways the privilege may be waived, and best practices to implement to preserve the privilege.
Description
Protection of the attorney–client privilege is critical to the attorney–client relationship. With the new e-discovery rules and the prevalence of electronic communication, preserving client confidentiality is more challenging than ever.
While email is the most common method of electronic communication, there are many alternative methods that must be considered when protection of the attorney–client privilege is at stake.
It is critical that both clients and counsel take proactive steps to protect all attorney–client communications — whatever the medium.
Listen as our authoritative panel of litigation specialists examines the attorney–client privilege in the context of electronic communications, waiver of the privilege, and best practices to implement to preserve the privilege.
Outline
- Key concerns about privilege
- Who has the privilege?
- Expectation of privacy
- When does privilege arise?
- Impact of the amended Federal Rules
- Alternative electronic communications and their inherent risks
- Ethical and legal guidance
- ABA and state bar association guidelines and opinions
- Court decisions
- Waiver
- Who can waive the privilege?
- Implied waiver
- Boilerplate disclaimers
- Waiver to governmental agencies
- Security of communication
- Inadvertent disclosure
- Employment litigation context
- Communication by employee to attorney using computer at work
- Four-part test to determine reasonable expectation of privacy
- Best practices for preserving the privilege
- Considerations for protecting the privilege in email
- Encryption and passwords
- Removal of metadata
- Education/training
- Control privileged material to reduce possibility of waiver
- Limited waiver agreements (courts split on enforceability)
Benefits
The panel will review these and other key questions:
- How does online communication change the reasonable expectation of privacy?
- How can attorneys protect clients’ privacy rights and attorney–client privilege while utilizing online communication?
- What guidance is available through ABA, state bar and court opinions to attorneys regarding the attorney–client privilege and confidentiality in e-communications?
Faculty
John J. Rosenthal,
Partner
Winston & Strawn, Washington, D.C.
He handles complex antitrust and litigation matters and is experienced in electronic discovery and risk reduction from e-discovery. He counsels on trade regulation, trademark and commercial issues. He counsels clients on record retention programs, compliance with electronic discovery, and implementing programs to reduce risk associated with the generation and retention of electronic records.
David J. Goldstone,
Partner
Goodwin Procter, Boston
He focuses on litigation relating to computer technologies and the Internet. He has extensive experience in intellectual property litigation, governmental investigations and computer security breaches. He also provides extensive advice to clients on retention of electronic documents and compliance with electronic discovery requirements.
David M. Greenwald,
Partner
Jenner & Block, Chicago
He is a member of the firm’s Litigation Department and White Collar Criminal Defense and Counseling Group. He represents clients in complex litigation, including internal investigations. He is editor of the firm’s "Attorney–Client Privilege Update" online resource center, which provides regular reports on this legal issue.
Ordering
Online CLE - Audio Recording
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CLE:
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Available 24 hours after the live event
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Includes full event recording plus handouts (available after live seminar).
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Customer Reviews
The seminar featured very knowledgeable presenters on an extremely important topic.
Kenneth Mathieu
FTI Consulting
I was impressed with the examples and the practical applications of the concepts.
Connie Sue Martin
Bullivant Houser Bailey
Very good current, practical and applicable discussion and information provided.
Matthew Moore
Clawson & Staubes, LLC
The seminar was understandable, fluid and thorough for the topics covered.
Susan L. Dolin, Esq.
Susan L. Dolin, P.A.
The seminar was very insightful with a terrific grasp of the relevant case law and legal issues.
Gregory Fox
Friedman Kaplan Seiler & Adelman LLP
Litigation Advisory Board
Partner
K&L Gates
Counsel
O’Melveny & Myers
Partner
SNR Denton
Shareholder
Capes Sokol Goodman & Sarachan
Partner
Baker & Hostetler
Partner
Mayer Brown
Partner
Winston & Strawn
Partner
Akin Gump Strauss Hauer & Feld
Robert B. (Barry) Wiggins
Director
Deloitte Financial Advisory Services
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