Dear Earl,

There is much uncertainty, even among many lawyers, as to when the
attorney-client privilege should be invoked or asserted.  Operationally
there are many challenges in protection confidential information from
leaking or finding its way into the hands of third parties.

In the context of records and information management, this is an
increasingly important area.  There is a new Rule of Evidence, Federal Rule
502, scheduled to take effect next December. The rule codifies circumstances
in which a party might inadvertently disclose privileged information without
waiving privileges.  If "reasonable steps" are taken to avoid disclosure
(e.g., measures taken before producing information to an adverse party) but
some information accidentally gets in the hands of a third party, there
would not be a waiver.  Good RIM policy and procedures would constitute
reasonable steps.  If you see the notes to the new rule, you will find
reference to this notion.  I testified on the subject.

The doctrine of inadvertent waiver is an area of great concern to all
generals counsel in the United States. This is a subject that RIM
professionals should study and understand as part of the value proposition
for recognizing the profession as a critical role in organizations.

For more information on the new Rule 502, please feel free to peruse my
website at www.lexakos.com.

Best wishes to all for a happy holiday season!

Rick


-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On Behalf
Of Johnson Jr., Earl
Sent: Tuesday, December 18, 2007 4:54 PM
To: [log in to unmask]
Subject: Is there a best practice for asserting attorney-client privilege?

Good afternoon,

 

Are there any best business practices being used in communicating to
your company about how/when to assert attorney-client privilege?  We're
finding that it is being used much too often and at times,
inappropriately, so I'm wondering if any of you out there in RM-land
have guidelines in place on when and how attorney-client privilege
should be used, and if so, how are you communicating that in your
company?

 

Thanks.

Earl

 

Records & Information Management (RIM)... Trust us for success!

Got RIM?

 

Earl Johnson, Jr.

Corporate Records Manager

Colonial Pipeline Company

E-mail: [log in to unmask]

Office: 678-762-2586

 

This message may contain CONFIDENTIAL INFORMATION intended solely for
the use of the addressee(s) named above. Any disclosure, distribution,
copying or use of the information by others is strictly prohibited. If
you have received this message in error, please advise the sender by
immediate reply and delete the original message.

 


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