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    DLI-6112587v21

    Privileged Documents

    Had Em, Lost Em Get Em Back

    May 4, 2007

    Denyse L. Jones and Kelly W. King

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    DLI-6112587v2 2

    The jury is instructed to ignore the law, justice,logic and common sense and consider only the

    harmful, random memos buried among the

    defendants records.

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    DLI-6112587v2 3

    Privileged Documents

    Had Em, Lost Em Get Em Back1. How privileged materials get outthere.2. How to protect what you kept.3. How to retrieve what slipped

    through4. How to prevent slips in the future.

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    FEMA

    Field rep: Situation is past critical thousands gathering in the streets with nofood and waterdying patients being

    medivacdwe are running out of food andwater at the dome...critical need

    everywhere...

    Ron Brown: thanks for the update. Anythingspecific I need to do or tweak?

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    DLI-6112587v2 6

    ENRON

    EnronEmail.com: 515,000messages- Vendor search tool toy- 28% unrelated to business- so you were looking for a one- night stand, after all?

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    Em ai l about Em ai l :

    Securities case: Shut upand destroy this email

    ENRON: Today is not good.

    Too many documents toshred. Tomorrow is better.

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    The B ig Pic t ure What is ESI?

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    The Big Pic t ure - Volum e/Cost

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    Metada ta

    Jfka;jiosjoijdjkafjdkfjicvjvdjmfkahdio;jvjmdklfjd

    kjkajkvjk;jdia;fjakdnfkajkgjmkaljg = When created By whom Sent to whom and when

    What edits made

    When might it matter: Contract dispute Trade Secrets/Non-compete Retaliation case

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    DLI-6112587v2 11

    Pr inc ipa l Form s of Produc t ion

    for ESI

    Hard Copies paper documents Images (e.g., .tif, .pdf*) *with or without textlayer Data exported to databases, text files, or loadfiles

    (e.g., .csv

    files, .txt files)

    Native format data viewed in the applicationin which file was created Hosted data controlled-access website

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    DLI-6112587v2 12

    There is absolutely no basis for plaintiff

    to argue for judgment as a matter oflaw and this Court should summarily

    deny the motion and direct the partiesto proceed to trial.

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    There is absolutely no basis [Bob: as youknow, the Angle

    case arguably provides a

    basis for Ps position, but they didnt citeit. I know you think its distinguishable,

    but can we really say absolutely nobasis?] for plaintiff to argue for judgmentas a matter of law and this Court shouldsummarily deny the motion and direct theparties to proceed to trial.

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    Exce l

    Remember that this

    is that totally bogus

    number you and Icame up with at our

    meeting with Jack.

    $105.23 $15.23 $10,358.23

    $423.16 $25.39 $85,943.56$528.39 $96,301.79

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    Priv i lege Review

    Develop Fi l t e r Term s

    Project word list or dictionary StatisticsIssues:

    Names Wildcards

    Email Addresses Bi-directional Pairs

    PhrasesKey Advice:Document the filter list and method.

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    DLI-6112587v2 16

    The rea l i t y

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    DLI-6112587v2 17

    The rea l i t y

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    The rea l i t y

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    Priv i lege Logs

    A "housekeeping" item

    Voluminous

    delegated to low-cost labor

    Complacency: it's clearly privileged

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    Priv i lege Logs

    Frequently required:1. the basics, date, sender, recipients2. title, occupation, duties

    3. how involved in transaction within

    company

    4. circumstances of creation5. all direct/indirect recipients of

    document OR substance

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    DLI-6112587v2 21

    Priv i lege Logs

    Date

    From

    To

    CCs

    Topic

    1/3/96 Smith Jones Day Notes re Audit

    Committee Meeting

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    Work Produc t Doc t r ine

    Requirements:

    Documents

    Prepared in anticipation of litigation

    By/for party or attorney

    Disclosure: Substantial need

    Undue hardship

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    At t orney-Cl ient Pr iv i lege

    1.

    Communication

    2. Made in confidence3.

    To an attorney

    4. By a client5. For the purpose of seeking legaladvice

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    Priv i lege Logs

    Common Logistical Problems:Business v. Legal HatsParent/AttachmentDescriptions

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    Priv i lege Logs

    Tension:need to reveal enough detail tosubstantiate privilege

    vs.

    waiver of privilege through excessive

    detail as to communication.

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    DLI-6112587v2 26

    Priv i lege Logs

    Descriptions held insufficient:"notes of audit meeting""notes of audit meeting regarding

    environmental provisions of acquisition agreement""notes of audit meeting regarding legal implications of environmental provisions of acquisition agreement"

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    Priv i lege Logs

    Sufficient:"notes of audit meeting reflecting legaladvice as to whether ERISA precluded

    certain environmental provisions of acquisition agreement"

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    Priv i lege Logs

    Inadequate Log Can Constitute Waiver:Insufficient log = failure to meet burdenof establishing privilege

    refusal to consider in camera

    no opportunity to cure

    waiver as to ALL documents

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    Tips t o Avo id Pr iv i lege

    Log Prob lem s

    do it right the first time (be sure the privilege is

    applicable)

    AAlpharma Inc. v. Kremers Urban Dev. Co.

    negotiate specifics in CMO

    agreements regarding parents, email threads,

    categorical descriptions

    beware of downside: categorical waiver

    get list of all lawyers/consultants at outset

    suggest use of master to resolve disputes

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    DLI-6112587v2 30

    An attorney now risks committing malpractice or

    receiving court sanctions if he or she does notadequately understand how electronic informationis created, stored and communicated.Michael D. Fielding, You Need To Know This: Bankruptcy and Attorney-

    Client Privilege in the Electronic Age, 25-10 ABIJ 1 (January 2007)Model Rule of Professional Conduct 1.6(a) statesthat a lawyer shall not reveal information relating

    to the representation of a client unless the clientgives informed consent, the disclosure isauthorized to carry out the representation or thedisclosure is permitted by [Rule 1.6(b)].

    The B ig Pic t ure Why Should I Care?

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    DLI-6112587v2 31

    They turned out to beshams, coming from a file

    on his computer labeledfake docs.

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    5 Basic St eps

    5 Basic Steps

    Best Practices for ESI*Discovery:

    1) Planning2) Collection3)

    Processing

    4) Reviewing5)

    Producing

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    How do I re t r ieve w hat

    s l ipped t hrough?

    FCRA Rule 26 Zubulake Draft Federal Rule of Evidence 502

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    FRCP Am end. t o t he Resc ue?

    FRCP 26(b)(5)(B): Procedure for dealing withprivileged materials inadvertently produced

    FRCP

    16(b)(6): Allows the parties to make

    agreements for dealing with privilege issues Clawback and similar agreements Incorporates reasoning from Zubulake v.UBS Warburg, 216 F.R.D. 280 (S.D.N.Y.

    2003)

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    DLI-6112587v2 35

    Zubulake/Sedona Conferenc e

    t o t he Resc ue?

    1983 plaintiff sought 94 back-up tapes Plaintiff order to pay share of restoration cost

    Defendant must pay all of their privilege

    review cost

    Encourages parties to come back with aclaw-back agreed order stating inadvertentdisclosure is not a waiver, docs should bereturned and that any notes or copies will be

    destroyed or deleted (quoting Sedona Conf.)

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    DLI-6112587v2 36

    Right Bac k t o Where We St ar t ed

    Advisory Cm t e Com m ent s

    Rule 26(b)(5)(B) does not a