If you are conducting a review for privileged documents and looking for an authoritative guide, consult A Practitioner's Summary Guide To The Attorney-Client Privilege And The Work Product Doctrine, posted by McGuire Woods LLP. In addition to looking for attorney-client communications, and checking to see if there are documents which constitute work product, keep in mind the following key points about privilege review:

  1. Fiduciary Exception - a beneficiary cannot be denied access to communications between a lawyer and a trustee about the administration of a trust.

  2. Garner Doctrine - the shareholders of a corporation may have access to attorney-client communications, because they are the true clients. Not all courts accept the Garner Doctrine.

  3. Settlor Exception - the fiduciary exception does not apply to the creation or termination of ERISA plans.

  4. Unprotected Background Information - logistical details of an attorney-client relationship are not protected. So for example, the date a client was referred to an attorney, or the length of an attorney's representation of a client would not be protected.

  5. Crime-Fraud Exception - communications about a client's criminal, fraudulent, or egregiously improper conduct are not protected. This applies to future acts, not acts which have already be taken.

  6. Joint Defense / Common Interest Doctrine - co-defendants can share privileged communications without waiving the protection. The represented parties will usually have to anticipate litigation in order for the communications to be protected.

  7. Implied Waiver - privilege can be waived if the holder of the privilege relies on the communications.

  8. Overcoming Work Product Protection - the protection may not apply in subsequent, unrelated litigation. A criminal defendant who is exonerated can request work product in a later civil case.

  9. Federal Rule of Evidence 612 - documents used to refresh a witness's recollection must be disclosed.

  10. Subject Matter Waiver - is more common for attorney-client communications than for work product. Disclosing a non-testifying expert's report and producing work product in discovery to a third party does not result in subject matter waiver, but using work product in testimony or letting an employee keep work product after they are terminated will result in subject matter waiver.

  11. Hearn Doctrine - at issue waiver can take place if a party asserts knowledge or ignorance of an important fact. So if the privileged communications will determine the outcome of a case, and there is no other source for the relevant information, then privilege can be waived.

Excel has a very simple formula which helps you find which number in a given array comes in a given position when the numbers are reviewed from highest to lowest The LARGE formula :


. . . tells us which number in row 1 from columns A to F is the second highest.

CrowdStrike is a leading American cybersecurity company, that took the lead into the investigation of Russia's hacking of the Democratic National Committee's email back in 2016. As detailed in a recent ZDNet article, CrowdStrike has released a Global Threat Report for 2021, which illustrates how cyber criminals cooperate with one another.

Some groups specialize in providing services such as ransomware, and malware kits. Webinject kits will add JavaScript into browsers which alters the information shown to a user. An additional box can be added to an online form that will prompt a user to enter confidential information such as a social security number.

Others focus on distribution by facilitating spamming or running traffic distribution systems. TDS systems direct users from one site to another from which malware can be installed.

Money mules are people who may believe they are working as a payment processing agent, but are in fact transferring funds sent by the victims of cyber attacks to the mule's bank account on to the hackers via Western Union which has a payment system that cannot be traced. Dump shops or CVV (card verification value) shops offer credit card account information for sale at around $20 per account, so others can prepare cards with the data.

Sean O'Shea has more than 15 years of experience in the litigation support field with major law firms in New York and San Francisco.   He is an ACEDS Certified eDiscovery Specialist and a Relativity Certified Administrator.

The views expressed in this blog are those of the owner and do not reflect the views or opinions of the owner’s employer.


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