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Document Retention and 'Attorney-Client Privileged' Communications By Erik Dullea Any lawsuit involvement can trigger document retention and production du‐ ties that management should under‐ stand. For example, if you receive an MSHA citation that you want to chal‐ lenge,be aware that document retention can become very important. You may receive a memorandum from the attor‐ neys – a "Litigation Hold" memo – in‐ structing company employees to retain all related documents, e‐mails and other electronically stored information ("ESI"), and to disable any auto‐destruction pro‐ grams until further advised. The Litigation Hold memo generally in‐ structs operators to identify all company files and e‐mail accounts that might have information related to the citation. Com‐ plying with Litigation Hold memos can be expensive and time consuming, but it is . is a significant area of concern for the courts which can impose significant sanctions on parties for failures to iden‐ tify, protect and retain documents. Procedural Rules for Discovery Discovery is one of the preliminary phases in any litigation where the par‐ ties seek information related to the dispute. During discovery, the parties can obtain non‐privileged information that is rele‐ vant to a party's claim or defense, or is reasonably calculated to lead to admissi‐ ble evidence so that both sides of the dis‐ pute can have a complete understanding of the facts and issues prior to trial. Dur‐ ing discovery, a party may request the other party produce documents or ESI maintained "in the usual course of busi‐ ness," including electronic backups and previously deleted files. Further, at the point when litigation is reasonably anticipated, the litigant must 40 ROCKproducts • OCTOBER 2012 suspend any and all routine document destruction policies. This requirement is the reason behind a Litigation Hold memo, and it is not the end of the process, but only the beginning of an in‐ teractive process between the client and the attorney. Attorneys are required to make a rea‐ sonable inquiry into client's production efforts. Attorneys must ensure that all sources of "potentially relevant infor‐ mation are identified" and preserved. These steps are necessary to verify all relevant information is discovered and retained on a continuing basis, and rel‐ evant non‐privileged ESI is produced to the opposing party. Several courts have penalized companies for not following these rules. Litigation Hold memos instruct clients to take proactive steps to preserve elec‐ tronic data when litigation is reasonably likely to occur. The cost and complexity of these proactive steps are a function of a client's volume of ESI. In addition to adding to a company's costs, a larger vol‐ ume of data raises the odds that privi‐ leged information will inadvertently be disclosed, which can lead to a waiver of an evidentiary privilege. Because a company must preserve ESI, it is useful for company management to be familiar with the types of communica‐ tions that could be excluded from dis‐ covery, and the actions that can cause a company to waive those protections. Attorney‐Client Communications Privi‐ lege and the Work Product Doctrine Information normally considered to be protected from discovery includes attor‐ ney‐client communications and docu‐ ments created by (or for) the attorney in preparation for litigation. Document retention, including electronically stored records is a significant area of concern for the courts. Erik M. Dullea, an attorney with Patton Boggs, concentrates his practice in the areas of infra- structure and development, with a particular focus on transportation and energy. He has worked on litigation matters in federal and state courts, as well as with the FAA, MSHA and OSHA. 303-894-6118, edullea@pattonboggs.com The attorney‐client communication priv‐ ilege is intended to facilitate candid, un‐ restrained exchanges of information between the client and the attorney. It protects communications or corre‐ spondence consisting of confidential communications between a client and an attorney for the purpose of obtain‐ ing and receiving legal advice. It applies to an attorney's conversations with current clients, former clients and prospective clients. The attorney‐client privilege will be waived however, if the confidential com‐ munications are divulged either to third parties. Traditionally, attorney‐client communications are directly between the client and the attorney and without any intermediary. This direct exchange is more complex when the client is a business; employees may need to dis‐ cuss information with each another in order to provide the attorney with a full picture of the situation. www.rockproducts.com