Fresh Perspectives on e-Discovery from Young Minds in the “Academy”

The best, most innovative solutions to thorny legal issues are often born in the academic community of law professors and students, a community that still refers to itself as the academy. In this regard, law is somewhat like physics or math, where the best, breakthrough insights often come early in life. Albert Einstein conceived his theories of relativity at age 26. It was pretty much downhill for him after that. The same is true to an even greater extent in the most abstract of fields – mathematics, where there has always been a strange mix of prodigies and geniuses, perhaps best exemplified by the doomed young Indian savant, Srinivasa Ramanujan.  

The young mind is particularly well suited for certain theoretical tasks; innovation in the law is one of those tasks. How else do you explain that only in law are all of the serious scholarly publications run and controlled by students? This is not the case in any other subject, even physics and math.

The emerging field of e-discovery, which combines law and technology, is especially well suited for young legal theorists. We practicing lawyers are tainted by our strongest asset, our wealth of experience. We already know how to do things. We have “been-there, done-that;” the beginner’s Zen mind is gone.

True, the practice of law is now, and always has been, controlled by the senior attorneys, the ones with the experience, clients, and power. But they are rarely, if ever, involved in theory or pure intellectual pursuits. Instead, they are focused on practical issues of representing clients. They devise and advocate theories and positions that benefit their clients, as opposed to theories that are true and just in an abstract platonic sense. They chase the shadows on the cave wall and have no time for frivolities in the sun. They leave justice to the judges and, to some extent, the  law professors. But in the area of e-discovery at least, the professors have been absent, ceding the field entirely to the students and judges.

A small handful of judges have had the time and energy to tackle e-discovery problems, but they have been few and far between. Moreover, the few judges that author landmark rulings in e-discovery recognize their limitations in experience with the digital world, and, like practicing attorneys, are constrained by limited time and resources.  

The few bona fide scholars that have emerged in e-discovery all recognize this problem too. For instance, Ken Withers understands the limits of our current e-discovery leadership and legal practice. Ken has even coined a word to explain the limits inherent to the mature mind, limits that make it so difficult to truly grasp the essence of e-discovery – “protodigital.” Those of us who, like Ken, grew up in a paper world and were first trained  in law as a “paper chase” are of the protodigital type. We are half-in and half-out of the new era of e-discovery. We have inherent gestalt limitations on our ability to make theoretical breakthroughs in electronic discovery. We are like astronaut Dave Bowman in Stanley Kubrick’s film, 2001: A Space Odyssey, before he transforms into the Star-Child.

The young minds who have lived their whole lives in a digital world have a significant edge in an increasingly techno-centric world. They are not as constrained by the shadows of the past. This is one reason that Ken and others in The Sedona Conference, including its executive director, Richard Braman, and the young Patrick Oot, all promote the need for including e-discovery in law school curricula. We all herald the coming good of the next generation of young lawyers.

Clicking Away Confidentiality; a Case in Point

For these reasons I am delighted to see more and more articles written by law students on e-discovery and published by the mainstream law reviews they operate. My son, Adam Colby Losey (shown left), recently published, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, as one of three student articles published in the current issue of Florida Law Review, Volume 60, Number 5, December 2008. Other articles in this same volume include: Student Speech Rights in the Digital Age by Mary-Rose Papandrea, a young Assistant Professor at Boston College Law School; and, Possession of Child Pornography: Should You Be Convicted When the Computer Cache Does the Saving for You? by  Giannina Marin, a law review student at the University of Florida School of Law. 

Adam’s article is concerned with the hot topic of when an employee’s use of their employer’s computers to communicate with an attorney should result in a waiver of their attorney-client privilege. Learned judges around the country have struggled with this question and have come up with answers that vary widely. The state of the law of workplace waiver is murky at best.  As a consequence, employees and employers alike cannot predict if employee email communications to lawyers are privileged. Prior to the recent publication of Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, there were no suggestions proposing a solution.

Walter Weyrauch was one of the faculty members at Florida who frequently advised Adam about Clicking Away Confidentiality. He recommended the use of a presumption to deal with workplace waiver. Professor Weyrauch held a J.S.D. in law from Yale (equivalent of a Ph.D.) and taught at the University of Florida for over fifty-one years. He was my favorite law professor at UF in the late 1970s, at which time he had already been teaching at U.F. for over twenty years, and so it was quite amazing that he also taught my son some thirty years later. Shortly after advising Adam on the finer points of presumptions, Professor Weyrauch  passed away on October 17, 2008. His insights and intellect will be sorely missed by the students, faculty, and alumnus of the University of Florida.

Admittedly, I am biased toward an article written by my son. However, he has been independently contacted by several judges, professors, and thought leaders in e-discovery regarding Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege to whom he had sent copies. After a year and a half of work, Adam naturally wants his article to be read and critiqued. I am pleased that the response has been swift and positive. Not merely in words, but also by actions, which speak louder. Adam has already been invited to participate in an e-discovery writing project with two leading scholars. Like me, they see the value of the voice of youth and the pure digital mind.

Adam has even been invited by the Chief Information Officer of the City of New York to participate in an e-discovery seminar in Manhattan this February. They plan on setting up a debate between Adam, representing the responding party, and someone with literally thirty years of legal experience representing the requesting party. No doubt the experienced lawyer assumes this will be a cake-walk, as Adam is still a student. However, I know from many hours of frustrating personal experience that all law students love to argue. With all of the experience they gain through 24/7 arguments at law school, they become very proficient at it. Dinner at the Losey home is often testament to this.

The Meat of Clicking Away Confidentiality

I hope to spend the rest of the blog enticing you to click the following link to Clicking Away Confidentiality and read the article yourself. Adam would appreciate your criticisms and thoughts. It is a concise piece; at 24 pages and 162 footnotes, you can easily study Clicking Away Confidentiality in under an hour and absorb over a year’s worth of work. You may even find that there are sections worth citing and quoting in your own briefs. 

Like most law review articles, it is written in a scholarly style, but also has wit and dry humor. For instance, the article begins with a factual scenario drawn directly from a recent New York Times article interviewing a woman named Barbara Hall. Ms. Hall describes her constant emails to her daughters while at work as “[i]n the grand tradition of Chekhov, or perhaps ‘Days of Our Lives,’ . . . .”.  

Reading this article, and others like it now emerging in law reviews around the country, will also provide you with an example of  full digital-mind legal reasoning. These articles provide taste of things to come from the next generation of lawyers. By the end of the read of Clicking Away Confidentiality, especially if you include the 162 footnotes, you will have a thorough grasp of the evolution of the doctrine of attorney-client privilege and when and how it can be waived in the workplace. The only published cases on either side are explained and a proposal is made for resolving the conflict. 

This whole project started about one and a half years ago when Adam was scouting around for a law review topic. At that time, my law firm had two cases where the issue of waiver of privilege by use of  an employer owned computer had become critical. I knew there was blatant conflict in the law, but had no idea how to resolve it. Our job was to present the law so that our client prevailed. I did not try to determine what the law should be or how to reconcile the conflicts. So goes the practice of law.

My only hand in Adam’s project was to influence the choice of topic and thereafter to encourage him in the hard work of research, analysis, and writing. Eighteen months later, when I read the final version of Clicking Away Confidentiality, I was impressed with the ideas, the proposed solution, and the style. In my biased view, Adam’s article is indeed first rate and his proposed solution to the conflict seems sound. However, I invite you to determine for yourself the viability of Adam’s proposed solution to the developing workplace waiver schism.

Before you click and start reading Clicking Away Confidentiality for yourself, you can get a good overview of the work by the Table of Contents:

I. INTRODUCTION: BARBARA HALL AND HER DAUGHTERS 

II. THE EVOLUTION OF ATTORNEY-CLIENT PRIVILEGE 

A. The Traditional Approach 

B. The Modern Approach 

C. Possible Chilling Effects 

D. Intersection with the Work Product Doctrine 

III. CHAOS IN THE COURTS 

A. The Employer’s Policies Regarding Computer Use and Monitoring 

B. Employee Use of a Password-Protected E-mail Account

C. Common Usage of Personal E-mail on Company Computers

D. Employee Attempts to Delete Privileged Material

E. Employer Enforcement of any Existing Policies

F. The Location of the Computer

G. The Forensic Method Used to View an Employee’s E-mails

H. Fairness and Public Policy

IV. MAKING SENSE OF IT ALL

A. The Knowledge Gap

B. Modern vs. Traditional Approach to Attorney-Client Privilege

V. THE WORKPLACE WAIVER PRESUMPTION

A. The Bright-Line Fallacy

B. Distillation of Logically Pertinent Variables

VI. CONCLUSION: ADOPTION OF THE WORKPLACE WAIVER PRESUMPTION

I am not going to steal the thunder of the article by revealing the details of the proposed solution to this problem, suffice it to say that it involves the application of a rebuttable presumption concerning whether the privilege has been waived. The presumption is triggered by proof of certain basic facts and circumstances concerning the workplace and employer policies.

As a final enticement to read this article, and the footnotes (as that is where many of the most interesting facts are found) I offer a few quotes. The first is from the introduction explaining the premise and scope of the article

While an estimated 90% of companies that monitor employee communications notify their employees about the possibility of monitoring, many employees are oblivious to the fact that a permanent record may exist of their Internet and e-mail use at work. This ignorance has resulted in serious consequences for employee litigants. At risk are the communications between attorney and client that have been extended special legal protections throughout history. This Note discusses workplace monitoring of these privileged communications. (footnotes omitted)

Part II points out the growing and unspoken abandonment of traditional approaches in these non-traditional cases. Part III describes the hodgepodge of emerging case law on the subject. Part IV attempts to identify the underlying source of difficulty in these abstruse cases. Part V teases the logically pertinent variables out of existing case law, and uses these variables as building blocks to construct a workplace waiver presumption. Finally, Part VI advocates the universal adoption of this workplace waiver presumption.

In these workplace waiver cases, a schism is quietly developing. Some courts are discreetly (and perhaps inadvertently) abandoning the traditionally accepted narrow interpretation of attorney-client privilege in favor of a broad protective approach on public policy grounds. Others continue to adhere to traditional doctrine. A clash between these two schools of thought may be inevitable. The universal application of a rebuttable presumption that an employee has waived attorney-client privilege could avert a direct collision between these two schools of thought and establish a semblance of predictability in workplace waiver cases.

Here are the final two closing paragraphs of the article. Read the whole work to understand exactly what presumption is recommended.

Courts can and should distill existing case law to determine the logically pertinent factual variables in workplace waiver cases, but a jurisprudential clash may be inevitable. Courts that have adopted the broad (modern) approach to attorney-client privilege, and those that have held fast to Wigmore’s narrow (traditional) interpretation are on a collision path.

The application of the workplace waiver presumption, described in this Note, is the best way to avert a direct collision between these two schools of thought and to achieve a semblance of predictability in these cases. Adherents to both the modern and traditional approaches would be able to use this presumption without compromising their viewpoints. This presumption would give courts a workable, flexible rubric that would prove invaluable in working through workplace waiver issues. It is clear that the adoption of the workplace waiver presumption is the logical first step in the development of workplace waiver jurisprudence.

Adam C. Losey, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, 20 Fla. L. Rev. 5 (Dec. 2008).

Happy Holidays to you and your family!