Legal outsourcing and US government surveillance - blows attorney-client privilege?

[Carol Shepherd]

Looking for opinions on the intersection of attorney-client privilege
and government monitoring of commercial communications between US firms
and offshore service providers.  A DC law firm has sued the government
claiming that wiretapping and surveillance policies potentially
compromise attorney-client privilege for litigation-related materials
which are sent to India and other countries for document review.

http://tinyurl.com/5s8mg9

--
Carol Ruth Shepherd
Arborlaw PLC
Ann Arbor MI USA
734 668 4646 v  734 786 1241 f
http://arborlaw.biz/


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[Kevin T. Neely]

On Wed, May 28, 2008 at 03:56:15PM -0400, Carol Shepherd wrote:
> Looking for opinions on the intersection of attorney-client privilege
> and government monitoring of commercial communications between US firms
> and offshore service providers.  A DC law firm has sued the government


(without reading the article, well, I skimmed it *very* briefly) Is the firm either 1) not encrypting the data end-to-end or 2) claiming the government can/does break the encryption to read and analyze the data?  I believe a law firm has a duty to use reasonable means to protect the attorney-client priv and to not encrypt the data with strong encryption would, IMHO, constitute a breach of that duty.

I am going to include the phone conversations between lead attys in the US and the reviewers in India as something that ought to be encrypted.  

K

--
In Vino Veritas
http://astroturfgarden.com



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[John Noble]

Every day, here in Washington D.C., scores of privileged legal
documents are turned over to unidentified, twenty-something bicycle
messengers-- never mind the hundreds of plain text fax transmissions,
and thousands of privileged documents that are dropped in a mailbox--
without anyone ever suggesting that the insecure delivery mode might
compromise the privilege. The unencrypted digital transmission,
overseas or domestic, is less insecure than any of those delivery
options.

In all the cases I can remember seeing on this issue, the only way I
recall anyone ever losing the privilege was by accidentally turning a
privileged document over to the other side-- and even then, courts
struggle to undergird the privilege by finding that mistakes happen
despite due care.

There's a vast difference between what one /should do/ to maintain
confidentiality /in fact/, and what one /must do/ to preserve the
privilege /as a matter of law/. Kevin arguably describes what a
careful lawyer should do, but not a court in the country would
require it.

John Noble

At 4:14 PM -0400 5/28/08, Kevin T. Neely wrote:

>On Wed, May 28, 2008 at 03:56:15PM -0400, Carol Shepherd wrote:
>>  Looking for opinions on the intersection of attorney-client privilege
>>  and government monitoring of commercial communications between US firms
>>  and offshore service providers.  A DC law firm has sued the government
>
>
>(without reading the article, well, I skimmed it *very* briefly) Is
>the firm either 1) not encrypting the data end-to-end or 2) claiming
>the government can/does break the encryption to read and analyze the
>data?  I believe a law firm has a duty to use reasonable means to
>protect the attorney-client priv and to not encrypt the data with
>strong encryption would, IMHO, constitute a breach of that duty.
>
>I am going to include the phone conversations between lead attys in
>the US and the reviewers in India as something that ought to be
>encrypted.
>
>K
>
>--
>In Vino Veritas
>http://astroturfgarden.com
>
>
>
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>For Listserv Instructions, see http://www.lawlists.net/cyberia
>Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
>Need more help? Send mail to: Cyberia-L-Request@...
>**********************************************************************

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[Greg Broiles]

On Wed, May 28, 2008 at 12:56 PM, Carol Shepherd <arborlaw@...> wrote:
> Looking for opinions on the intersection of attorney-client privilege and
> government monitoring of commercial communications between US firms and
> offshore service providers.  A DC law firm has sued the government
> claiming that wiretapping and surveillance policies potentially compromise
> attorney-client privilege for litigation-related materials which are sent to
> India and other countries for document review.

I don't think it necessarily waives the evidentiary privilege - but it
certainly infringes upon attorney-client confidentiality, which is a
related but legally and logically distinct issue.

For example, tapping ordinarly analog telephone lines is incredibly
easy to do, and is widely done, legally and not, by government workers
and private sector agents alike. (Try a Google search for "Pellicano"
if you have any doubt on this issue.) The equipment necessary to do
this is sold in every Radio Shack in the country. We don't, however,
conclude that the attorney-client privilege has been waived because we
talked to a client or co-counsel on an analog phone line.

On the other hand, I think it's great that the law firm has the time
and energy to explore the issue.

--
Greg Broiles, JD, LLM Tax, EA
gbroiles@... (Lists only. Not for confidential communications.)
Legacy Planning Law Group
San Jose, CA
California Estate Planning Blog: http://www.estateplanblog.com


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[Randall-12]

From: Greg Broiles <gbroiles@...>
Date: Wednesday, May 28, 2008 18:34
Subject: Re: [CYBERIA] Legal outsourcing and US government surveillance - blows attorney-client privilege?
To: CYBERIA-L@...


> Greg Broiles, JD, LLM Tax, EA
> gbroiles@... (Lists only. Not for confidential communications.)
> Legacy Planning Law Group
> San Jose, CA
> California Estate Planning Blog: http://www.estateplanblog.com

What of attorneys who communicate with clients via gmail?   You *KNOW* those communications are going to be machine-parsed, in order to deliver possibly relevant advertisements.   Is the fact that they're not /supposed/ to be read by humans relevant to the discussion of Privilege?


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[peter-134]

I'm actually teaching attorney-client privilege this week in professional responsibility.

A good analogy is that there are bar opinions saying that the privilege is maintained through unencrypted email.

When you send email through plaintext, you know the ISPs and other forwarding stations on the Internet can see your communication, but that in itself does not blow the privilege.

I think the possibility of secret wiretapping is less likely to blow the privilege.

Peter

Prof. Peter P. Swire
C. William O'Neil Professor of Law
   Moritz College of Law
   The Ohio State University
Senior Fellow, Center for American Progress
[phone], www.peterswire.net


-----Original Message-----
From: Law & Policy of Computer Communications [mailto:CYBERIA-L@...] On Behalf Of Randall Webmail
Sent: Wednesday, May 28, 2008 10:11 PM
To: CYBERIA-L@...
Subject: Re: [CYBERIA] Legal outsourcing and US government surveillance - blows attorney-client privilege?

From: Greg Broiles <gbroiles@...>
Date: Wednesday, May 28, 2008 18:34
Subject: Re: [CYBERIA] Legal outsourcing and US government surveillance - blows attorney-client privilege?
To: CYBERIA-L@...


> Greg Broiles, JD, LLM Tax, EA
> gbroiles@... (Lists only. Not for confidential communications.)
> Legacy Planning Law Group
> San Jose, CA
> California Estate Planning Blog: http://www.estateplanblog.com

What of attorneys who communicate with clients via gmail?   You *KNOW* those communications are going to be machine-parsed, in order to deliver possibly relevant advertisements.   Is the fact that they're not /supposed/ to be read by humans relevant to the discussion of Privilege?


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