Privilege Issues in the Age of Electronic Discovery, 2013 Edition explains how the nature and scope of the attorney-client privilege and work-product protection have been impacted by technology, generally, and electronic discovery in particular. The costs and burdens of dealing with electronic discovery are dominating litigation. Companies spend billions of dollars dealing with electronic discovery, and the projections are rising. The costs to review documents for privilege are staggering, and the volume and different forms of electronic discovery make it easier than ever to inadvertently produce privileged documents.

This third volume in the Electronic Discovery Portfolio Series explores these unique issues relating to privilege in e-discovery and provides practical guidelines and comprehensive analysis of the law, including inadvertent production and risks of waiver of privilege, new federal rules, expectation of privacy, practical guidelines for dealing with privilege issues, and analysis of new Federal Rule of Evidence 502 and cases construing the rule and practical advice to avoid waiver claims.   

The portfolio begins with an introduction to relevant privileges and protections, concepts developed prior to the computer age. It then describes in detail the far-reaching implications of technology on these fundamental tenets of the legal profession, examining privilege as it relates to the reasonable expectation of privacy and related ethical issues, waiver, privilege logs, the crime-fraud exception, experts, litigation hold notices, and litigation support databases.   

The 2013 Edition offers important new information, including: 

• A discussion of revisions to ABA Model Ethics Rule 1.6 regarding a lawyer’s obligation to protect client confidences, in light of evolving technological advances that may increase the likelihood of inadvertent production
• Additional case updates on various issues including the significance of the Advisory Committee Note to Federal Rule of Evidence 502(a) and of the party’s failure to produce a privilege log   

The portfolio provides additional analysis of new court decisions under Federal Rule of Evidence 502, a new court decision involving Twitter, and new right to privacy court decisions.  

About the Author

David J. Lender is a partner in the Litigation Department and head of the E-discovery Task Force at Weil, Gotshal & Manges LLP, New York, NY.