E-Discovery and Attorney-Client Privilege: Document Reviews and Inadvertent Disclosures

Conducting a Defensible Privilege Review and Leveraging FRE 502 and Clawback Agreements to Protect Communications and Documents

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Tuesday, September 11, 2012

Recorded event now available

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Course Materials

This CLE course will provide counsel with best practices for searching and identifying privileged documents amid electronically stored information. The panel will offer strategies for leveraging Federal Rules of Evidence (FRE) 502 and clawback agreements to preserve the privilege and confidentiality of work product.

Description

Protecting the attorney-client privilege is critical. With the prevalence of electronic communication, preserving client confidentiality during document production is more challenging than ever.

When a search fails to identify privileged documents and a court determines that the search was not thorough and defensible, waiver may be found. Thus, litigators must ensure effective and defensible searching and sampling techniques that avoid inadvertent disclosures.

Although FRE 502 encourages the use of clawback agreements, these agreements are often not fully utilized. A well-structured agreement can reduce production costs and increase the likelihood the court will interpret issues under the parties’ agreement rather than the 502(b) default standards.

Listen as our authoritative panel of litigators examines best practices for conducting attorney-client privilege reviews and leveraging FRE 502 and clawback agreements and orders to avoid waiver of the privilege and work product protection.

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Outline

  1. Privilege reviews
  2. FRE 502 and inadvertent disclosures
    1. FRE 502(b) “reasonable steps” to prevent and rectify disclosures
    2. FRE 502(d) court orders
  3. FRE 502(e) clawback agreements
    1. Leveraging use of clawback agreements
    2. Court imposition of clawback agreements
    3. Court interpretation of clawback agreements

Benefits

The panel will review these and other key questions:

  • What are best practices for conducting privilege review and preparing privilege logs?
  • What are the latest court decisions regarding waiver of the privilege for inadvertent document disclosures?
  • How can counsel leverage FRE 502 and clawback agreements to control the cost of privilege review and protect against inadvertent waiver?
  • How are various courts interpreting clawback agreements and to what degree do they rely on FRE 502(b) standards?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Faculty

Maura R. Grossman
Maura R. Grossman
Counsel
Wachtell Lipton Rosen & Katz

She has represented Fortune 100 companies and major financial services institutions in corporate and securities...  |  Read More

Jennifer F. Beltrami
Jennifer F. Beltrami
Member
Cozen O’Connor

She litigates complex commercial cases in federal and state courts nationwide and handles state appellate cases in New...  |  Read More

Sarah Jane Gillett
Sarah Jane Gillett
Shareholder
Hall Estill

She developed and heads the firm’s electronic discovery practice group and counsels clients on the development of...  |  Read More

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