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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
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Chicago, Illinois 60611-4497

Defending [iberty
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American Bar Association



01. 9,NO-

Still Discovering
- Lawyers lead the way
in crafting e-discovery
Page 3
New Rulings Offer
 Lawyers not liable for lost
* 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
Page 7
Risky Business
- No money-back guarantees.
Page 8

Technology in Litigation
Word Processing
Documents Reveal
Drafters' Secrets
Savvy litigators take steps to protect codes
hidden in electronic files

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-

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
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

jury was protected by the attorney-client
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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