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29 Litig. News 1 (2003-2004)

handle is hein.journals/lignws29 and id is 1 raw text is: SErION OF LMGATION American Bar Association 750 North Lake Shore Drive Chicago, Illinois 60611-4497 Defending [iberty Nonprofit Organization U.S. Postage PAID American Bar Association LITIGATION NEWS .ION OF LITIGATION • AMERICAN BAR ASSOCIATION • 01. 9,NO- INSIDE Still Discovering E-Discovery - Lawyers lead the way in crafting e-discovery procedures. Page 3 New Rulings Offer Protection Lawyers not liable for lost damages. * New settlement privilege. Page 4 New Strategies Depositions: Elaborate, please. Slow judges: Proceed with caution. Page 5 When Is a Blog a Blawg? • New online legal resources. Page 6 Employers Beware - S. Ct. extends mixed-motive instructions. Page 7 Risky Business - No money-back guarantees. Page 8 LEGAL PUBISBIN- SPONSOR OF THE ABA SECTION OF LITIGATION LexisNexis Technology in Litigation Word Processing Documents Reveal Drafters' Secrets Savvy litigators take steps to protect codes hidden in electronic files By JOSEI LITIGATION NE M odern litigators are facing new challenges created by their oppo- nents' ability to track edi- torial changes they make in their documents pre- pared in Microsoft Word and other popular word processing programs. An attorney could give the opponent the lawyer's case strategy and possibly waive the attorney-client privilege simply by pro- viding the electronic file of a brief or pleading. Word files attached to e- mail are an especially scary subject to mal- practice insurers, who ad- vise lawyers to educate themselves on the poten- tial electronic traps for the technologically unwary. Depending on the word processing and e-mail soft- ware, the recipient of the document may be able to uncover all of the changes you made during drafting, including language you may have tried and then discarded, paragraphs you duped from other con- tracts, even comments you made to your colleagues who worked on the docu- ment, says Emily J. Eichenhom, West Bloom- Pn P. BECKMAN WS ASSOCIATE EDITOR field, MI, Large Law Firm Risk Management, CNA Pro, and a frequent speaker and author on the subject. The potential strategy breach and privilege waiver would occur if an opponent was aware of and leveraged these see the codes, he adds. hidden changes. Using RTF format reduces A slip of the finger is the risk that the person irrevocable. Once you press receiving the document will that Send button, it's gone, be able to see the history of adds Mark A. the document. Neubauer, Santa The recipient Monica, CA, Co- Once you press that will be able to Director of the Send button t's open the RTF Section's Publica- file in most word tions Division. irrevocably gone. processing pro- 'Most people grams. RTF will -are wising-up,_. .. sorretain com-. Neubauer says. When some plex formatting such as table firms transmit documents, information, graphic align- they are automatically ment, pagination, and doing it in rich text format macros. It does retain font (RTF) so that you can't (turn to page 2-Word) Attorney-Client Privilege Spin Control Efforts May Be Immune from Disclosure Privilege may apply to public relations firms hired by counsel BY MARY S. DIEMER LITIGATION NEWS ASSOCIATE EDITOR X n a recent decision involving an undis- closed, high-profile criminal target, a U.S. district court held that discussions between a target's attorneys and public relations consul- tants may be privileged and shielded from disclosure to the government. Counsel for the undisclosed target hired a public relations firm to counteract perceived media pressure on prosecutors to indict. After learning that the U.S. Attorney's Office had issued a grand jury subpoena to the pub- lic relations firm, the target intervened, argu- ing that the information sought by the grand Resource: jury was protected by the attorney-client privilege. The court sustained the privilege objec- tion, ruling that (1) confidential commu- nications (2) between lawyers and public relations consultants (3) hired by the lawyers to assist them in dealing with the media in cases such as this (4) that are made for the purposes of giving or receiv- ing advice (5) directed at handling the client's legal problems are protected by the attorney-client privilege. The decision recognizes an important problem faced by criminal defense attorneys today, according to Bruce E. Yannett, New York City, immediate-past Co-Chair of the Section's Criminal Litigation Committee. The government makes great use of the media. To represent your client fully, you have to use your own public relations strat- egy, he comments. Notwithstanding this decision, if I retained a PR firm for my client, I would still be careful to limit what I shared about the client's defense strategy, Yannett cautions. D In re Grand Jury Subpoenas Dated March 24, 2003, Directed to (a) Grand Jury Witness Firm and (b) Grand Jury Witness, No. Ml 1-189 (S.D.N.Y. June 2, 2003), www.nysd.uscourts.gov/courtweb/pdf/DO2NYSC/03-04781 .pdf.

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