The Dangers of Trusting Technology to Keep Privileged Documents From Opposing Counsel

It's every litigator's fear - inadvertent disclosure of privileged documents leading to a court finding of waiver of privilege.  A recent Illinois case shows just how easy it is to waive the privilege if you do not stay on top of the technological aspects of your production, even after conducting a complete review and indentifying privileged documents.

In 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. Unfortunately for counsel, every document that had been identified as privileged was produced to opposing counsel. To make matters worse, defense counsel did not learn of the accidental disclosure for nearly nine months of discovery. He then waited an additional four months to produce a privilege log to opposing counsel. Not surprisingly, the court held that while some of documents were privileged when originally created, defense counsel had waived privilege by his actions, or more precisely his inaction.

Here are some key points from the case all litigators should take to heart when engaging in document production:
 

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.

The court determined that the defendants' procedures for privilege review were "completely ineffective." Although counsel "thought" marking a document as privileged in the electronic database would automatically lead to it being withheld from opposing counsel, counsel never actually checked the production to assure that this was the case. The court also noted that counsel hardly could have taken adequate safeguards against production where every single privileged document, not merely one or two, had been produced.

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.

The Thorncreek court weighed heavily the defendants' nearly nine-months' ignorance regarding the disclosure of privileged documents. Defense counsel failed to check in at all, on the electronic database of documents to see what documents were present and what documents opposing counsel was viewing from the production.

Defense counsel was also faulted for failing to timely produce a privilege log. Such a log would have alerted both sets of counsel to a privileged document being accidentally disclosed. Instead, defense counsel waited more than a year after production began, and a whole four months after learning of the accidental disclosure during a deposition, to provide such a log.

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.

The court came down on defense counsel for not knowing of the inadvertent production of privileged documents for months, and then failing to act with diligence after finding out.

It may be basic, but the lesson is that there must be additional checks and balances other than simply checking off documents as privileged in an electronic database, ten steps before they are actually produced. While this hardly means that an attorney must re-check every single document marked for production or privilege a second time, there could be, for example, a search of a sample of privileged documents to ensure they are privileged; and a sample of non-privileged documents to make sure nothing privileged has snuck into the pile. Another method is to run a search for a few attorney names, and verify that the resulting hits are marked privileged.

The bottom line is that counsel should always check a production for privileged documents, monitor documents in an electronic database, and act immediately to assert privilege when an accidental production is found.