Attorneys nationwide are preparing to practice under the new electronic discovery amendments to the Federal Rules of Civil Procedure, which became effective on Dec. 1. The amended rules require parties in civil litigation to confer about e-discovery issues at the earliest time practicable. See Amended Fed. R. Civ. P. 26(f). One of the matters that parties should be prepared to address during this initial discussion is the assertion of privilege claims as to e-mails that are part of larger “strings” comprising both privileged and nonprivileged e-mails. Focusing on this issue before discovery begins may enable attorneys to decrease the costs of discovery and reduce the risk of court-ordered sanctions.
Increasing reliance on e-mail is a fact of life in today’s business and legal environments. Yet every innovation in technology that improves our ability to communicate carries corresponding burdens for lawyers and their clients. The falling costs of storing vast amounts of data, coupled with the fear of being accused of destroying material that companies may be obligated to retain, have led to the retention of increasing amounts of data for longer periods of time. Among the problems this creates for litigators is the increased burden of reviewing vast quantities of e-mails, and identifying and asserting claims of attorney-client privilege and work-product protection over electronic documents.
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