2008-05-23 Data Maps and eDiscovery Protocol Deliberations - Discoverable?

The question raised is not only whether internal data maps generated for eDiscovery, but whether discussions about such data map generation, together with decisional processes on selection of eDiscovery protocols, etc., (where not agreed to in advance by both parties) are discoverable.

On the one hand, an argument may be made that these documents fall under the attorney-client privilege, or are attorney work-product, and may therefore be excluded from production. A good way to ensure the availability of these arguments is to make sure that all such deliberations and drafts pass through appropriately placed counsel. The effect, of course, is to "immunize" otherwise discoverable information from disclosure and use by the requesting party.

This approach has recently received some scrutiny and comment by US Magistrate Judge David Baker (Middle District, Florida) and does not bode well for the longevity or vitality of the approach:

A leading treatise author, Paul R. Rice, has recognized the practice of businesses who may try to “immunize internal [business] communications from discovery by placing legal counsel in strategic corporate positions and funneling documents through counsel.” 1 Paul R. Rice, Attorney-Client Privilege in The United States § 7:2. “There is general agreement that the protection of the privilege applies only if the primary or predominate purpose of the attorney-client consultations is to seek legal advice or assistance.” Id. § 7:5. “There are substantial policy reasons for holding that business documents submitted for attorney review are not by that virtue automatically exempt as privileged or work product protected communications.” Visa USA, Inc. v. First Data Corp, 2004 WL 1878209, 8 (N.D.Cal.2004).

The structure of certain business enterprises, when their legal departments have broad powers, and the manner in which they circulate documents is broad, has consequences that those companies must live with relative to their burden of persuasion when privilege is asserted. See, e.g., In re Vioxx Products Liability Litigation, 501 F.Supp.2d 789, 805 (E.D.La.2007). When the business “simultaneously sends communications to both lawyers and non-lawyers, it usually cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.” Id. (citing United States v. Chevron Corp., 1996 WL 444597 (N.D.Cal.1996)); United States v. International Business Machines Corp., 66 F.R.D. 206, 213 (S.D.N.Y.1974) (“If the document was prepared for purposes of simultaneous review by legal and non-legal personnel, it cannot be said that the primary purpose of the document is to secure legal advice.”). Consequently, the privilege does not protect such communications. In re Vioxx, 501 F.Supp.2d at 805; Attorney-Client Privilege § 7.2.1 (“Because of the ease with which e-mail technology allows in-house counsel to be brought into discussions, counsel are contacted far more frequently, and through those contacts, are likely encouraged to participate in regular business matters far more frequently and broadly than was the case in the past.”). Judge Fallon, incorporating the report from Special Master Rice FN4, explained the reasoning:
FN4. Judge Fallon selected as Special Master for privilege document discovery Professor Paul R. Rice, author of the treatise, Attorney-Client Privilege in the United States.

When these simultaneous conveyances for mixed purposes are through an e-mail message that lists the lawyers' names in the header of the e-mail message, [the defendant] Merck is revealing the contents of the single message that may have been conveyed to its lawyer primarily for legal assistance. In that circumstance, the single message could have been withheld as a privileged communication had Merck sent blind copies to the lawyers, instead of electing this format. Through a blind copy, the content of what was communicated to its attorney would have remained confidential after future discovery of the document from the other recipient's files, its purpose would have been primarily legal, and the privilege would have been applicable. Similarly, if Merck had sent a wholly separate e-mail communication with the same materials to the lawyer, the same claim could be successfully made for that single communication even though it otherwise served mixed purposes. In modern vernacular, Merck, in a variety of instances, “could have had a V-8,” but it chose another format and manner of document circulation and cannot now be heard to complain about the consequences of those choices. Otherwise, Merck would be able to limit the scope of what adversaries can discover by the way in which it chooses to communicate.

*5 Similarly, after a communication with its attachment has been sent to both lawyers and non-lawyers in the same e-mail communication, and its primary purpose is determined not to have been for obtaining legal advice, the lawyer's independent response can only be protected if the derivative nature of the privilege is ignored. Theoretically, the lawyer's response should be protected only if it reveals the content of prior confidential communications from the client. Since those communications are no longer confidential, nothing the lawyer discloses in her edits reveals protected communications of the client. 501 F.Supp.2d at 805-06." In re Seroquel Products Liability Litigation 2008 WL 1995058, 4 -5 (M.D.Fla.,2008)