This article by the team at Osborne Clarke talks about a number of cases where privilege has impacted eDiscovery.
This really highlights the complexity of detain cases and situations. Plus, I think it also reminds us of the importance of early engagement of experts. Something I know I regularly talk about – but it really is so essential.
From our experience, early involvement of data experts is paramount to an efficient disclosure exercise.
Not only will this allow the expert to get to grips with the data quickly, including identifying potentially privilege categories of documents earlier rather than later, but it will also allow the client access to a subject matter expert/ testifying expert who will be able to advise on what documents will be useful at trial. This can help to ensure that the collection and review methodology are aligned, and that vital evidence isn’t mislaid that is required later down the line.
Where documents are undoubtedly privileged, but belong to an employee and are stored on the employer's servers, will privilege be lost?