Perspective: Electronic communications and their discontents

Attorneys, legal scholars and the courts are governed by a latticework of legal rules created long before the advent of the electronic age. Now all concerned find themselves forced to adapt to changes brought by computer technology.

That dilemma was highlighted during a recent court case--but first, a few definitions.

In litigation, one side in a dispute is not required to turn over to the other side any documents that contain privileged communications between attorney and client. The decision not to produce such materials must be documented in what the legal profession calls a privilege log.

For each withheld document, enough information must be included on the log so the opposing side can understand or test whether it was properly withheld. A typical privilege log entry will provide relevant information about each document without divulging the privileged or work product substance. So, for instance, you would find items such as the name of the author and the people who were copied and a general reference to the subject matter.

All the rules relating to this sort of thing were adopted prior to the electronic age. In this new age, the number and volume of communications has increased exponentially with the ease of electronic communications.

The issue of proper procedure recently came up in a case when the question arose whether a privilege log has to separately address every one of many e-mails withheld from production. The party resisting such detailed efforts argued against the sheer burden of the exercise. As explained below, the court agreed.

In the case of Fifty-Six Hope Road Music Ltd. v. Mayah Collections, Inc., the plaintiffs alleged that they were the exclusive owners and licensees of all trademark and publicity rights in the name, image and likeness of the late reggae musician Bob Marley. They argued that the defendants continued to sell Bob Marley T-shirts beyond the rights they had obtained in a license agreement. The defendants denied this allegation.

As the case progressed, the defendants wanted a look at the plaintiffs' e-mails. In addition, they also wanted privilege log entries for each of the hundreds--and possibly thousands--of e-mail communications between the plaintiffs and their counsel.

The plaintiffs objected. If the court ultimately ordered them to comply, they argued that the defendants should reimburse them for their expenses.

The federal judge in Nevada agreed that the burden of the exercise would outweigh its value. But rather than requiring a separate privilege log entry for each withheld e-mail, the judge took a different tack.

First, he required the plaintiffs provide under oath a declaration they would make a good faith effort to locate and produce all relevant documents and e-mails.

What's more, they were to produce a reasonable estimate of the number of privileged e-mail communications that existed.

The judge further ordered the plaintiffs to review the e-mails to ensure that only truly privileged and confidential electronic correspondence was being withheld.

Lastly, they were to make sure the withheld e-mails had not been shared with anyone who did not fall within the circle of the privileged relationship.

It is worth noting that this streamlined process deprives the party seeking the discovery of e-mails of some degree of oversight. If a party truly is interested in more detail, it always can volunteer to pay the shipping for a detailed privilege log.

However, plainly put, the judge greatly eased the burden of the plaintiffs in justifying their withholding of e-mails as privileged or a confidential work product. If this approach is followed in other cases, life will get a lot easier for attorneys and their clients.

Biography
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to [e-mail] with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

More Perspectives

[oregonnerd]

procedures adapted to 'the electronic age'

It's interesting that the law system is doing exactly what many businesses are still doing. To wit, they're trying to adapt procedures (and accompanying statistics) to a new environment. Of course, in a busness model quite often an executive who understands the fundamentals of computing and (electronic) networking poorly if at all--instructs a subordinate to do something that may or may not be possible. Then again, I dimly remember that there was at least a notional legal requirement to store RAM on a computer for later investigation. That suggests that some--conceivably quite brilliant--minds in the justice system imperfectly understand computers and networking as well...
--Glenn

[Phillep_H]

Custody of evidence

If I understand correctly, there is no way for the side asking for disclosure to know if the other side is really coughing up the information desired. MS certainly doesn't.