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Electronic Discovery Lesson: Waiver of Attorney/Client Privilege and Non-Core Work Product for Attorney Interviews with Custodians to Establish that Failure to Preserve ESI Was Inadvertent

By Francis G. X. Pileggi, Esq.

In re Intel Corp. Microprocessor Antitrust Litigation, 2008 WL 2310288 (D.Del. 2008), read opinion here. This is an opinion that should be read by anyone who wants to, or needs to, keep up to date on electronic discovery (EDD) pitfalls (read: all business litigators). The backdrop to this particular dispute in the litigation involved the inadvertent failure to retain data by certain Intel custodians of electronically stored information (ESI) who it seems did not follow instructions given to them regarding a "litigation hold".

Notably, the parties described this case as potentially involving "the largest electronic production in history". However, that did not  justify an exception to the applicable rules and analysis. See generally Fed. R. Civ. P. 37(f) and committee notes (recent amendment that allows for  a safe harbor under certain circumstances if ESI is inadvertently destroyed)

When it was determined that certain custodians had failed to properly preserve ESI, a law firm was engaged to interview those custodians to establish to the court that the error  in failing to preserve data was inadvertent human error. As a result of relying on those interviews to establish that "defense" to spoliation, however, the court adopted the findings of a Special Master that:

• the attorney/client privilege was waived; and
• the "non-core" attorney work product had to be produced. See Fed. R. Civ. P. 26(b)(3)(A)(ii)

The opinion has a helpful discussion of situations where the attorney/client privilege is waived as well as when the "attorney work product" (both core and "non-core") protection will NOT be allowed.

Full post as published by Delaware Corporate and Commercial Litigation Blog on September 16, 2008 (boomark / email).