It has been estimated that 90 percent of documents originate in electronic form.1 As attorneys and their clients are painfully aware, much discovery in New York state and federal courts now involves the retrieval and review of electronically stored information (ESI) because it may involve matter that is potentially relevant pursuant to CPLR 3101(a) or FRCP 26(b).
Such “E-discovery,” whether engaged in through formal or informal discovery demands and exchanges, poses the possibility of the attorney doing, or failing to do, something which results in the disclosure to an opposing party of attorney-client privileged matter. For example, privileged documents may be inadvertently included in a document production involving the review of several thousand documents as a result of human mistake or computer-assisted review error; or a privileged document may be inadvertently attached to an email sent to “all counsel”; or a deleted file containing privileged documents may still be accessible through a larger folder structure which is produced.
