The ESI Item Tracking Sheet needs to reflect whether privilege or confidentiality applies, to which items, whether redactions took place and (very importantly) whether those redactions were applied. There are a variety of ways to do this, evidently, but here is an easy-to-implement fool proof method.
What is a privilege? What is confidential?
First, let's lay out our definitions for attorney client privilege, work product confidentiality, and confidentiality. (Note that the method described in this post can just as easily apply to healthcare records, spousal privilege, etc.).
Attorney Client Privilege
The following is the Fifth Circuit definition of attorney-client privilege communication: 1) a confidential communications; 2) made to a lawyer or his subordinate; 3) “for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.” In re Royce Homes, LP, 449 B.R. 709, 723 (Bankr. S.D. Tex. 2011) (citing United States v. Robinson,121 F.3d 971, 974 (5th Cir.1997); United States v. Pipkins,528 F.2d 559, 562 (5th Cir.1976); Alpert v. Riley, 267 F.R.D. 202, 208 (S.D. Tex. 2010)). This is a fairly standard definition across the country.
The attorney-client privilege is an exception to the general rule that the law is entitled to every man's evidence. In re Chinese Manufactured Drywall Prods. Liab. Litig., MDL No. 2047 SECTION L, at *3 (E.D. La. Nov. 10, 2015). The privilege generally protects communications from the client to the attorney, and responsive communications from the attorney to the client. Id.
A widely quoted definition of the attorney-client privilege appears in United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950):
The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
Id. (citing 89 F. Supp. at 358-59).
Work Product Protection
While attorney client and work product are often used interchangeably, it is incorrect to do so. The work product doctrine offers protection to the lawyers' mental impressions and legal theories; it is not about communications with lawyers.
The Supreme Court recognized the work product doctrine in Hickman v. Taylor, 329 U.S. 495 (1947). As recognized by the Supreme Court, the work product doctrine is a rebuttable presumption. This presumption may be overcome when a party has relevant and non-privileged facts which would be essential to the preparation of the adverse party's case.
The Eleventh Circuit provides the following helpful definition of attorney work product:
The work-product privilege protects documents that reveal an attorney's mental impressions and legal theories and were prepared by the attorney in contemplation of litigation. The privilege applies not only to documents created after litigation has begun but also to documents created in anticipation of litigation.
Hines v. Widnall, 183 F.R.D. 596, 600 (N.D. Fla. 1998) (citing Delaney, Migdail & Young, Chartered v. IRS,826 F.2d 124, 127 (D.C.Cir.1987); Hickman v. Taylor,329 U.S. 495, 509-10, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947); Fed.R.Civ.P. 26(b)(3)).
Confidentiality flows from a legal instrument; it cannot merely be a client's opinion that something is confidential. The usual way to establish confidentiality in a case is to ask the Court to enter a protective order. This is because there is a strong presumption in favor of the public having access to all information and documents produced in discovery: “Generally, the public can gain access to litigation documents and information produced during discovery unless the party opposing disclosure shows "good cause" why a protective order is necessary. Phillips v. General Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002). Fed. R. Civ. P. 26(c) allows a derogation from that public access presumption for "good cause":
(c) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(E) designating the persons who may be present while the discovery is conducted;
(F) requiring that a deposition be sealed and opened only on court order;
(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
Fed. R. Civ. P. 26(c)(1).
Marking ESI Items in the Tracking Sheet
Once you have the right people marking ESI Items (with proper training and knowledge base) you should allow them to differentiate between whether an item is to be redacted, has been redacted, or will be withheld and on what basis. See the following example for what this can look like:
Attorney Client privilege and Work Product protection can have three outcomes: mark something to be redacted, redact it, or withhold it altogether. The key in the above ESI Tracking Sheet is as follows:
x = AC material to be redacted
r = AC material has been redacted
w = withhold the document
The additional utility of this exercise is that a privilege log can be created in minutes by sorting the spreadsheet by the AC & WP columns, and pulling those items into a separate spreadsheet.
Confidentiality will have three outcomes: marked for redaction, redacted, and produced with a confidentiality stamp. Nothing is withheld; this is because if something makes it into an ESI Item Tracking Sheet it is to be produced. As a result, the item will be produced. The redactions are not to protect confidential information, per se. The redactions are to withhold information that would not be produced, not matter what. This would include full account numbers, addresses (at times), dates of birth, and social security numbers. Based on the above, the key is the following:
c = to be marked confidential
x =to be redacted
r = redacted
Looking at the spreadsheet above, we know that someone reviewed the Machine LLC bank statements but that they have not been marked confidential. Someone reviewed the medical records and also marked them confidential, so they are ready to be produced. The executed Line of Credit contract has also been reviewed and marked, and is also ready to go.
The above spreadsheet allows easy sorting and reviewing of documents, creates clear systems, and allows the whole team to be on the same page about what has been done and what needs to be done. It also ensures clarity in production, and creates an easy to use database for generating privilege logs and confidentiality logs.