Relativity Fest 2021 kicked off today. While the legal technology universe has expanded beyond the eDiscovery use case that dominated discussion last decade, it’s important to take a step back sometimes and remember that dealing with the ever-growing blob of electronic data surrounding every litigatable issue remains a pillar of the technology space.
So, we’ve got an opportunity to catch up on the world of eDiscovery — or “discovery” as it’s probably more fair to call it — from both technical and legal angles with practitioners from all over the spectrum
And it’s important to stress “practitioners from all over the spectrum” because discovery isn’t just for law firms any more. From third-party vendors to the government to in-house legal departments, everyone has a hand in eDiscovery these days.
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Which is why the panel that grabbed my attention on day one was the conference’s update on recent developments in attorney-client privilege and work product protection (available here if you’re signed up for Relativity Fest… which you should be). David Horrigan, Ryan O’Leary, Kenya Parrish-Dixon, and occasional ATL columnist Kelly Twigger come at the subject as lawyers wearing different hats: O’Leary as Research Manager in IDC’s Security and Trust program, Parrish-Dixon as COO of information governance firm Empire Risk Management Group, and Twigger in private practice focusing on eDiscovery.
In a nutshell, lawyers are trying to get away with everything they can in the privilege space — making overly aggressive classifications and waiting for the other side to call them out and the courts to tell them no. Not sure that’s a “new” development and not just what shady lawyers have been doing since the beginning. But what is new is how this can put in-house lawyers with expanding portfolios in a pickle.
Parrish-Dixon walked through the messy issues that arise as in-house lawyers get more involved in business work. “It’s really important that you establish early on that your communication with lawyers is fundamentally legal.” Twigger concurred, noting that “the question of whether you’re securing legal advice versus business advice can be dicey and I think that’s where lines get crossed.”
A few years ago, it was all the rage to suggest that in-house legal departments would take advantage of technological innovation to retake large swaths of legal work from outside counsel to keep costs down. It would seem the privilege is where that vision ran aground with GCs neck deep in business decisions mucking up privilege questions. At a certain point, companies are paying for privilege peace of mind.
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But sometimes that may not be enough. Data breaches are the perfect juxtaposition of a business crisis with legal implications. What about the situation where a company hires a vendor to investigate a data breach? Must everything the vendor does run through outside counsel to preserve its protection? Does that even work?
It certainly didn’t for Capital One, who used a vendor under the auspices of outside counsel to create a report for regulators and still had to turn it over to plaintiffs with the court reasoning that there’s no reason to think the company wouldn’t have conducted the same review in the absence of any fear of litigation. O’Leary noted that “we may come to a point where investigating a data breach is per se in anticipation of litigation.” There’s not a lot of reason to be digging into it without some fear that it’s going to end in a suit.
But until that common sense takes over, companies could find themselves screwed if they’re hiring vendors to look into breaches without going out of their way to tag that work as explicitly in anticipation of litigation.
This wasn’t the only development in privilege law discussed by the panel, but it seemed the most pressing for in-house counsel trying to navigate the treacherous business-legal divide. While there may not be a perfect answer, the best advice is to declare your privilege early and be as overly aggressive as possible about tagging data breach work as a work product issue. Outside counsel is a necessary but insufficient safeguard. Pay investigators from the litigation budget, make litigation-centric requests, keep access to the report as limited as you would any other strategic material.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.