Confidential Information

“But in-house counsel was copied on the email, isn’t that enough?”

When a business faces the prospect of producing documents in litigation, determining which documents are protected by the attorney-client privilege and preventing those documents from inadvertent disclosure is of paramount importance. Such a disclosure can have serious consequences for both the attorney’s and the client’s interests, including a court finding the privilege has been waived. At the same time, if an attorney is overly restrictive or indiscriminately withholds documents, they risk losing credibility with opposing counsel and the court, which can make it more difficult to assert the privilege when necessary. 

In my experience as an e-discovery project manager, I’ve found that one of the primary reasons for lengthy document reviews is the need to redact documents. While the extent to which redactions will be needed may not be known at the outset of a review, good project management should include recognizing when and what type of redactions may be needed. Factors to consider include the type of case, the extensive nature of the collection process, the type of files processed for review, the stipulations agreed to in the ESI protocol and protective order, the sophistication of the legal teams involved, the contentious nature of the dispute and, perhaps of equal importance, the technology available to apply those redactions.

In an era of massive spreadsheets, expansive power points, and wide ranging email discussions, there are innumerable documents that may contain tremendous amounts of non-relevant and sensitive information which the opposing side would not be entitled to at all, except for that information’s proximity to minimal amounts of relevant information. Not all courts have come out in the same place on redacting non-responsive information, however, and there appears to be a dearth of controlling law or general consensus. In this article we will survey a cross section of relevant cases on both sides of the issue.