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Last week, the Federal Circuit held (PDF) that an auto-saved copy of an email from a Google Engineer to a Google VP in charge of the Android operating system was not protected under attorney-client privilege or the work-product doctrine, despite the inclusion of the final version of the email on Google’s privilege log. Though the final (potentially incriminating) email was listed on the privilege log, drafts of the email that were auto-saved were not.
The issue came to light when Oracle sought to use the auto-saved copy of the email in a dispute with Google. Because of the “dump and recall” approach of document production in patent litigation cases, more questionable documents are being exposed despite attempts to shield them using privilege logs. Subsequently, claims of privilege are more likely to be questioned, and possible disclosure of documents could then increase as well.
So what does this mean for the attorney-client privilege and the work-product doctrine? Though the case was fact specific and therefore will not serve as direct precedent, companies like Google will need to be more diligent in their inclusion of documents and document drafts on privilege logs, or find a way around the auto-save function when using the “dump and recall” approach to discovery production. Although “claw back” provisions can allow a litigant to argue, after-the-fact, that a document should not have been produced in the discovery process, these provisions cannot “un-ring the bell.” What has been disclosed, even inadvertently, has already come to light.
Because discovery can have a serious impact on the outcome of any litigation, it is likely that the world of patent litigation, and other cases involving electronic discovery, will take notice. Either companies will need to seek out a new technology to override or compartmentalize the auto-save function; or much more time, effort, and expense will need to go into an already painstaking and costly discovery production process. Either way, it is possible that future litigants could see auto-saved drafts of potentially incriminating documents as a back door to traditional electronic discovery.
– Susan Reilly
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