Time: 1:00 to 2:30 pm EST
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Webinar on The Sedona ConferenceCommentary on Protection of Privileged ESI
Potential Ethics credit available – check your state requirements.*
In the past few years, we have witnessed the explosion of the sheer volume of information now subject to discovery. The ever-expanding volume of electronically stored information (ESI) complicates any producing party’s ability to identify, log, and exclude from production documents subject to a claim of privilege. It is difficult or impossible to prevent the unintentional production of at least some privileged materials in a large ESI production. In addition, the preparation of privilege logs can consume hundreds of thousands of dollars or more, and rarely “enable other parties to assess the claim” as contemplated by Rule 26(b)(5). And a poorly-prepared privilege log can result in a declaration that the assertions of privilege have been waived.
In 2008, Federal Rule of Evidence 502 was adopted. This rule was intended to address waiver and reduce the cost of civil discovery. However, the bench and the bar have largely ignored the Rule and have failed to take advantage of its protections. As Judge Paul Grimm has noted with respect to Rule 502: “To date it has not lived up to its promise . . . because parties have overlooked it and courts have not construed it consistently with its purpose. . . .”
This Commentary is an attempt by The Sedona Conference to breathe some needed life into the understanding and use of Rule 502 by:
reminding counsel that at least some of the problems relating to discovery stem from attorneys’ basic misunderstanding of the law of privilege in the context of modern document production;
encouraging parties, lawyers and the courts to consider employing Rule 502(d) type orders in every complex civil matter;
in the absence of Rule 502(d) type orders, articulating a safe harbor standard that protects parties from claims of waiver in connection with the inadvertent production of privileged materials provided that there is adherence to certain basic best practices in the context of ESI privilege review;
encouraging cooperation among litigants to lower the cost and burden of identifying privileged information; and
identifying protocols, processes, tools, and techniques that can be used to limit the costs associated with the identification, logging, and dispute resolution relating to the assertion of privileges.
Join the editor, a team leader and a judicial participant of this important Commentary for a 90-minute webinar to introduce the basic concepts of privilege assertion and waiver, posit four bedrock principles for the protection of privileged ESI, discuss the ethical obligations of attorneys and the role of technology in identifying and protecting client confidences, and solicit your questions and comments.
*CLE credit: *The Sedona Conference does not apply for CLE accreditation for webinars, but registrants may submit documentation to their respective state CLE office for potential credit.
Questions and comments
The panel will address as many of your questions and comments regarding the Commentary as possible during this webinar. To facilitate the panel’s discussion, we invite you to submit your questions and comments by email in advance to the host of The Sedona Conference “Voices From the Desert” webinar series, Kenneth J. Withers, at [email protected].
Please note that any of the Appendixes that will be discussed during the webinar are included at the end of the Commentary.