Do you feel overwhelmed by the recent changes to the Federal Rules of Civil Procedure (FRCP) regarding electronically stored information (ESI)?² Do you feel you do not understand the technologies used to create and store electronic information? Do you dread litigation knowing that before discovery begins you must sit down with opposing counsel and attempt to agree on the ESI protocol under FRCP 26(f)? Do you understand that professionals employed by the estate, creditors and clients may very well be the ones who expose the attorney to waiver of the attorney-client privilege and work-product doctrine? Should attorneys understand the inherent "weaknesses" where attorney-client privileged electronic communications and work-product could be inadvertently exposed to an opposing party or third party? Are you unable to explain to clients how to protect the attorney-client privilege and work product as it relates to ESI?

If you answered "yes" to any of these questions, then take heart, because you are not alone. Whether we like it or not, technology issues are something that every practicing attorney must confront. While a comprehensive discussion of the numerous technology risks associated with ESI is beyond the scope of this article,³ this article discusses the attorney-client privilege in the context of bankruptcy and the digital age and provides practical guidance to help your practice succeed.

The Problems

The attorney-client privilege is a well-established principle of American jurisprudence, to ensure open and candid discussions between a client and his attorney.⁴ Historically, attorney-client communications were easily protected because oral conversations were not recorded and written communications only existed on discrete pieces of paper that could be easily secured.

In the last decade, however, the amount of ESI⁵ has exponentially increased along with a sharp rise in the ways third parties can access the recorded data. We often fail to remember that "e-mail was not intended as a secure means of communication ...the vast majority of e-mails traverse the globe in an unencrypted format. This is analogous to sending a postcard via regular mail."⁶ Moreover, "[i]t is easy to have e-mail accidents, and accidents are more common in important business and personal communications than most people may realize. An e-mail message can be easily sent to anyone in an instant—and there's no hope of retrieving it once you hit "Send." It takes just a single errant keystroke or mouse click to send a message to the wrong recipient."⁷

To compound matters, many bankruptcy attorneys have failed to respond to technology changes by acquiring basic skills regarding the "best practices" necessary to protect and/or discover electronic data. This slow adaptation has not been by accident. Far too often, attorneys do not spend sufficient time developing substantive knowledge of "nonlegal" matters that nonetheless have a major impact on the practice of law. That includes being the principal "teacher" for protecting the attorney-client privilege, because electronic communications can only be as safe as the "weakest link" in the chain of electronic communications.

Moreover, the relatively slow pace by which procedural rules are made and by which common law standards develop into well settled principles of law has, to some extent, also left attorneys without clear guidance on how to deal with the plethora of evolving electronic/digital issues. All of these factors affect an attorney's ability to either protect the attorney-client privilege and/or discover the contents of "privileged" communications that have been obtained or waived through the sharing of ESI with third parties.

Long before the 21st Century, businesses and individuals embraced information technology while most bankruptcy attorneys continued believing that the attorney-client privilege remained as an almost bullet-proof wall against disclosure of client communications. The perception rested largely on the often unstated assumptions that the corporate entity would continue to operate as a going concern and that it would maintain the confidentiality of its communications. Bankruptcy, however, fundamentally jeopardizes those assumptions, and the data points associated with electronic communications coupled with the lack of comprehensive electronic data protection by bankruptcy attorneys, professionals and clients clearly indicates the risk to the privilege has never been greater. In short, the bankruptcy community will forever face cutting-edge technologies because it is simply the process of doing business.

The Attorney-Client Privilege and Bankruptcy

To best protect the attorney-client privilege, it is necessary to first have a general understanding of the well-established legal principles upon which the privilege is based. The attorney-client privilege applies to "(1) communications (2) made in confidence (3) by the client (4) in the course of seeking legal advice (5) from a lawyer in his capacity as such, and [it] applies only (6) when invoked by the client and (7) not waived."⁸ In determining whether a communication was confidential, courts apply both a subjective and objective test.⁹ Specifically, the parties must have subjectively intended the communication to be confidential and, given the facts and circumstances, the expectation of confidentiality must be reasonable.¹⁰

The attorney-client privilege may be waived either expressly or impliedly through a party's conduct.¹¹ An implied waiver "occurs when a party claiming the privilege voluntarily disclosed confidential information on a given subject matter to a party not covered by the privilege."¹² For example, where strings of privileged e-mails were forwarded to a third-party consultant, the bankruptcy court in the Asia Global Crossing case held that the privilege had been waived.¹³ Indeed, Asia Global Crossing should serve as a wake-up call for all attorneys about how easily the privilege can be lost when just one member of a "control" group forwards a privileged communication to an outsider.¹⁴

When the client is a solvent corporation, "the agent that controls the corporate attorney-client privilege is the corporation's management."¹⁵ Likewise in bankruptcy, the privilege is controlled by the entity that most closely resembles its management.¹⁶ Whenever management changes, the new managers may waive the corporate attorney-client privilege with respect to communications made by the previous management.¹⁷ Under this principle, it is well-established that a bankruptcy trustee may thus waive the attorney-client privilege with respect to a corporate debtor's pre-bankruptcy communications.¹⁸

Critically, directors or officers of a corporation cannot invoke the attorney-client privilege to protect disclosure of their personal communications with corporate counsel when those communications concern the corporation.¹⁹ Rather, communications between corporate counsel and individual corporate managers are only protected when the communications are for the corporate manager's personal liability, rights or causes of action.²⁰ Indeed, there is a five-part test to determine whether a corporate manager has a personal attorney-client privilege with corporate counsel: (1) the manager must approach counsel seeking legal advice; (2) the manager must have made it clear that he/she was seeking advice in their individual capacity; (3) corporate counsel communicated with them in their individual capacity knowing that a conflict might arise; (4) the communications were confidential; and (5) their communications do not concern company affairs.²¹

Disclosure of Privileged Communications

Examples include §363 sales, liquidations, cancellations/returns of leased computers and digital electronic equipment;²² contracted "outsourced" accounting and financial operations, production of electronically created, stored and shared information in an adversary proceeding, turnover of property of the estate²³ and turnover of property by a custodian.²⁴ There will be a transfer of ESI in some form to or from a third party in virtually every bankruptcy (from a consumer chapter 7 to a mega-chapter 11). In the rough-and-tumble world of bankruptcy litigation, attorneys risk facilitating an inadvertent disclosure of privileged or confidential information through practically any sale, transfer, disposition or abandonment of property when they fail to fully understand "active," "inactive," "assessable" and "not reasonably accessible" ESI that is property of the estate (including the electronic books and records and financial information that may be lost and/or provided to third parties if proper steps regarding ESI are not taken).²⁵

It is often stated that an attorney cannot unilaterally waive the attorney-client privilege.²⁶ But in reality, that is not completely true. As a practical matter, the confidentiality of a privileged communication is lost any time its contents are revealed to a third party. Moreover, the attorney-client privilege may be waived as a matter of law through an inadvertent disclosure of the privileged communication. Indeed, a client's attorney and other professionals involved in the case are the persons most likely to inadvertently disclose a privileged communication to an adverse party.²⁷

Three tests have evolved for determining whether a waiver occurred as a result of an inadvertent disclosure.²⁸ Under the lenient approach, the privilege can only be waived by the client's "intentional and knowing relinquishment" and it provides "little incentive for lawyers to maintain tight control over privileged material."²⁹ The second approach is the "strict test" wherein a disclosed document loses the privilege if it is produced.³⁰ This results not only in a waiver of the document itself but also to other communications that relate to the document's subject matter.³¹

The final or middle-of-the-road approach considers five factors: "(1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) the promptness of measures taken to rectify the disclosure and (5) whether the overriding interest of justice would be served by relieving the party of its error."³² A waiver of the privilege under this final approach may apply just to the disclosed document or to other related but undisclosed documents.³³ In short, "when waiver occurs as a result of inadvertent document disclosure, courts have limited the scope of that waiver based on the circumstances involved and overall fairness."³⁴

The False Sense of Security Regarding Protection Against Inadvertent Disclosures

Attorneys concerned about protecting inadvertently disclosed communications may point to a handful of recent decisions that held that the privilege remained intact despite the inadvertent production of privileged electronic communications.³⁵ They also might find comfort in the amended Federal Rules of Civil Procedure, which allow parties, by agreement, to protect and otherwise not review privileged communications.³⁶ While the procedural developments do afford some protection, the threat of an inadvertent production is still very real and can have substantially adverse consequences.

The vast majority of federal cases settle rather than going to trial. Thus, the key issue regarding inadvertently disclosed materials is not whether they are admissible but rather the impact that the disclosure has on the dynamics of the settlement negotiations. The number one rule in a negotiation is to get as much information as possible.³⁷ This allows a party to leverage the negotiation and to obtain a more favorable result.³⁸ When an inadvertent disclosure occurs, the disclosing party has significantly weakened itself by providing key information to the other side. Even if a protective agreement exists among the parties regarding inadvertent disclosure, the damage is often incurable because a party who has received the privileged material generally does not realize its confidential nature until it has been reviewed. And even if the disclosing party obtains a court order to return and/or destroy the privileged material, its contents cannot be erased from the mind of the opposing party. Thus, the bottom line is that an inadvertent disclosure can be costly for the client in terms of the ultimate settlement amount.

Attorneys may believe that the threat of an inadvertent disclosure is minimal if the parties have an agreement regarding production of privileged materials. It is easy to understand why attorneys (especially those who are e-illiterate) would prefer such an agreement: They have a vested interest to protect themselves. But this self-interest can directly conflict with their ethical obligation to zealously represent their client's interests—particularly when gathering information could substantially advance their client's position. Moreover, an attorney who routinely relies on such protective agreements may suddenly find himself or herself at a major disadvantage if the other side simply refuses to enter into such a contract.

Attorneys may seek to limit the impact of an inadvertent disclosure by referring to the American Bar Association's 1992 Formal Opinion (No. 92-368) that an attorney who receives inadvertently disclosed information should not review the contents, notify the sending party and follow that party's directions regarding the materials. This rule applied to the then existing Rule 4.4 of the Model Rules of Professional Conduct, which is still in force in some states. In sharp contrast, the American Bar Association in 2005 withdrew its 1992 opinion in connection with amendments to Rule 4.4(b) and now opines that an attorney must only notify the other side when privileged documents are produced.³⁹ Critically, there is no requirement to refrain from looking at the contents of the document.

Attorneys may also attempt to rely upon the "unwritten" rules of legal practice to protect against an inadvertent disclosure. As a matter of general practice, judges and opposing counsel frequently provide "outs" where an attorney whose performance has been less than stellar may avoid, to some extent, the adverse consequences of his or her actions while simultaneously saving face with the client. It is understandable why this occurs. Judges were once lawyers and are sympathetic to the fact that everyone makes mistakes. Practicing attorneys are very much aware that legal communities are often quite small and the opposing counsel in one case will likely be the opposing counsel in a future action.

While these "unwritten" rules do bring a certain level of professionalism to the practice, they are to some extent also at odds with the attorney's written ethical obligations to represent the client's interests. Because the ethical obligations to refrain from looking at privileged material are changing, attorneys should fully expect that the unwritten rules of a few years ago will not necessarily apply today or tomorrow.

In short, an inadvertent disclosure may be the basis of a malpractice action if the disclosing attorney is not sufficiently sophisticated in e-discovery matters. While the likelihood of a malpractice action may be small—particularly where opposing counsel and/or the judge provides a "save face while getting out" resolution, the much more real threat is a significantly less favorable settlement amount, client dissatisfaction, and loss of future work and referrals.

The Solution: Follow Proper Principles

What can an attorney do to ensure that ESI is not disclosed and remains privileged? The answer is simple, but its execution can be difficult: Follow proper principles that overarch privileged electronic communications in a bankruptcy setting. What are those principles?

First, an attorney must have adequate technical knowledge and understanding of how and where ESI is created and stored, and that knowledge must be kept up-to-date as technological changes occur. Understanding the technologies used in your legal office is not what the recent changes to the FRCP or the authors are talking about. Bankruptcy attorneys must be able to effectively advise their clients how to practically and legally protect privileged electronic communications. They must recognize the numerous situations where electronic communications may be obtained by a third party—particularly where nonattorneys provide services to the client. They must also know how and where ESI is created, stored and transferred such that they can methodically and properly pursue such information in discovery. For example, the Southern District of New York in Phoenix Four recently found that a law firm's failure to find its clients' ESI constituted "gross negligence" and ordered both the firm and the defendants to pay monetary sanctions.⁴⁰ The Phoenix Four decision should be the clarion call to all bankruptcy attorneys, because the law firm's "gross negligence" was a result of its failure to conduct a methodical search for ESI while simply relying upon the defendants' representations that there were no sources of ESI because the company was no longer in operation.⁴¹

The Phoenix Four court said:
[C]ounsel's obligation is not confined to a request for documents; the duty is to search for sources of information... In reaching this determination, I am guided by the proposed amendments to Federal Rule of Civil Procedure 26, which become effective in December of this year. Proposed Rule 26(a) requires parties to disclose "a description by category and location of...electronically stored information." Proposed Rule 26(b)(2) reinforces the concept that a party must identify even those sources that are "not reasonably accessible," but exempts the party from having to provide discovery from such sources unless its adversary moves to compel discovery. The proposed amendments essentially codify the teaching of Zubulake IV & V.⁴²

How can an attorney stay up to date given the rapid technological changes and a demanding practice? The key is to be diligently persistent in learning about technology. Technological advances and improvements in hardware and software, (patches, service packs, updates and bug fixes) are both incremental improvements and new technologies. If an attorney has a solid understanding of existing technology, it will be much easier to understand the new technologies and adopt his or her practice accordingly. To do this, an attorney must be diligent in continually learning about technological advancements. Failure to adequately adapt one's practice to the changing times can lead to adverse repercussions. In short, an attorney now risks committing malpractice or receiving court sanctions if he or she does not adequately understand how electronic information is created, stored and communicated.

Second, an attorney must know the law regarding the attorney-client privilege and how it can be lost. This includes a clear understanding of which communications are privileged and which are not. For a bankruptcy attorney—particularly those representing financially distressed debtors—there must be a constant recognition that the bullet-proof nature of the communication can be easily lost if new management subsequently removes the Kevlar vest of privilege.

Third, an attorney must clearly identify whom he or she represents (i.e., the company or the individual), and that representation must be clearly communicated to the person with whom the attorney communicates. Moreover, attorneys must carefully advise their clients as to how the privilege could be lost or disclosed in a digital age (including instruction that simply sending a "cc" to an attorney does not necessarily make the communication privileged). Attorneys that represent officers or directors of a company must be particularly careful in how they communicate with their clients because an "at-work" communication with one's attorney via electronic means will likely end up in the hands of new management, a bankruptcy trustee and/or an unsecured creditors' committee. To protect the interests of management, both corporate and outside counsel should be careful to avoid situations where asked to render advice about personal rights or obligations.

Fourth, attorneys must scrupulously protect against disclosure in any form of privileged communications. To do this, the attorney must take strong proactive steps to ensure that office files and communications are protected from outside intrusion and technology risks created from inside the firm, including those that may take place from co-workers, professionals, and clients.⁴³ To begin, bankruptcy attorneys should ask themselves one question to get on the right track: "When are we going to use encryption technology to protect the privilege and work product for our clients and demand the same from the professionals involved in our cases?" According to Douglas Schweitzer, "encrypting your e-mail will keep your messages safe from all but the most determined hackers. Protecting your intellectual property assets is paramount, and those assets include e-mail. In the end, this will become a non-negotiable requirement in our litigious society. Encryption is a reasonable precaution that we'll have to take when sending sensitive information anywhere around the globe."⁴⁴

Also, do you know how many in your firm have installed instant messaging (IM) software? You may be surprised to learn that traditional firewalls do not stop them. It was estimated that in 2005 there were an average of 13.9 billion instant messages every day.⁴⁵ Indeed, businesses and individuals are now using "group instant messaging." Hand-held wireless devices (PDA's, cell phones etc.) are quickly becoming of age and will likely be a most formidable challenge to the privilege in the future because the "speech to text" capability of the new Blackberry quickly converts the user's words into ESI text rather than requiring the typing of a cumbersome and cryptic messages.⁴⁶ How many messages can these devices retain? Would attorneys, professionals and clients do anything differently if the answer was "all of them—voice and text?" Can you see how the "weakest link" can expose the privilege?

Your security should include IT security audits,⁴⁷ firewalls, anti-malware⁴⁸ software, and again, adopting a strategy for encrypting client electronic communications. Do you know if your laptop or PDA (including Blackberry) is safe from outside attack? The answer is "maybe not," unless the Blackberry Enterprise Server has been properly updated for known security risks. What do you do to make sure that e-mails purporting to have been sent by your clients are genuine before acting on them? Major companies have found their Web sites infected with Trojans⁴⁹ lurking for the next visitor. Is it hard for a hacker to take down a law firm's site? No. But why would they do that when all they really have to do is "infect" your site and the sites of those with whom you work by using the right Trojan and then wait for the pot of gold?

When reviewing documents for production, the attorney must employ strong safeguards to minimize the risk of an inadvertent disclosure.⁵⁰ In the context of a bankruptcy proceeding, an attorney must insure that electronic assets that have been allowed by the court to leave the estate have been properly erased.⁵¹ In short, attorneys must act as if the "strict test" to inadvertent disclosure applies.

Finally and most importantly, bankruptcy attorneys must always recognize that there is an inherently greater likelihood that their communications will one day be revealed or that the privilege attaching thereto will be waived. Accordingly, a bankruptcy attorney should always assume and act as if his or her communications will be revealed. Whether in private or in public, the best course is to always take the high road and do what is right, no matter what the immediate pressures or consequences may be.

Conclusion

Simply being knowledgeable about the law will no longer suffice. Rather, attorneys must have a thorough understanding of the electronic media which businesses use and through which we communicate. Those attorneys that make the necessary sacrifices and gain this knowledge will have a distinct advantage over those who do not, and the bottom line will be more effective representation of their client's interests and protection of their client's communications, because without the proper skills on your side, you are at a major disadvantage against those who will use the best of this technology.

Footnotes

1 The views of Mr. Fielding are strictly his own and do not necessarily represent the views of Blackwell Sanders Peper Martin LLP.

2 See FRCP 16(b), 26(a), 26(b)(2), 26(b)(5), 26(f), 33(d), 34(b), 37(f), 45, and Form 35 effective Dec. 1, 2006.

3 See the following articles on the subject of technology associated risks from electronic communications in protecting the attorney-client privilege and work-product doctrine: Seward, J., "Stop Your e-Mail Risk-Now!" Practice Tips LJN's Legal Tech Newsletter Law Journal Newsletters, July 2004 (www.ljnonline.com); Seward, J., "Solutions For Safer eMail Procedures" Practice Tips LJN's Legal Tech Newsletter Law Journal Newsletters, August 2004; (www.ljnonline.com); Seward, J., "Rejecting E-illiteracy and Adopting the Best Practices to Protect the Debtor's Confidential Information and Estate Assets" NABTalk, Journal of the National Association of Bankruptcy Trustees, Fall 2004; Seward, J., "Protecting Yourself Against E-illiteracy: Avoid Being Duped" American Bankruptcy Institute Journal, September 2004; Seward, J., "Always Look Both Ways—Especially When Using Digital/Electronic Communications" American Bankruptcy Institute Journal, July/August 2005; Seward, J., "Failure to Encrypt E-Mail Jeopardizes the Privilege and Work-Product Doctrine: Protect or Perish" American Bankruptcy Institute Journal, February 2006; Seward, J., "Judge Learned Hand Please Help Them to Help Themselves: History Is About to Replicate Itself," American Bankruptcy Institute Journal, September 2006.

4 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

5 Devices used to store electronic information may include, but are not limited to computers, laptops, servers, PDAs, hand-held devices, CD, DVD, telephone equipment, cell phones Microdrive, digital cameras, CompactFlash, SmartMedia, SecureDigital, Memory Stick and MultiMediaCard, optical devices, floppy disks, USB devices, MP3 players, iPod, FireWire devices, PCMCIA removable drives, Zip disks, Jazz Disks, fax machines, internal and external hard disk drives, tape backup systems, anti-theft systems, GPS, backup media devices, audio and digital recording devices; hundreds of specific products and technologies exist.

6 Schweitzer, Douglas, "E-mail Insecurity in a Litigious Society", Computerworld computerworld.com/action/article.do?command= viewArticleBasic&articleId=111607, June 26, 2006.

7 See note 6.

8 Meoli v. American Medical Service of San Diego, 287 B.R. 808, 813 (S.D. Cal. 2003) (citing United States v. Abrahams, 905 F.2d 1276, 1283 (9th Cir. 1990)).

9 In re Asia Global Crossing Ltd., 322 B.R. 247, 255 (Bankr. S.D.N.Y. 2005).

10 Id.

11 In re Keeper of the Records, 348 F.3d 16, 22 (1st Cir. 2003); see also Hanson v. United States Agency for Int'l. Development, 372 F.3d 286, 293-94 (4th Cir. 2004).

12 Hanson, 372 F.3d at 294.

13 In re Asia Global Crossing Ltd., 322 B.R. 247, 260-61 (Bankr. S.D.N.Y. 2005).

14 See Seward, J., "e-Pinned and e-Trapped in Technology," ABI Technology & Telecommunication Cases Committee E-newsletter, June 2005.

15 Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 356 (1985).

16 Id. at 351-52.

17 See, e.g., id. at 349; In re Grand Jury Subpoena, 274 F.3d 563, 571 (1st Cir. 2001); Medcom Holding Co. v. Baxter Travenol Laboratories Inc., 689 F.Supp. 841 (N.D. Ill. 1988).

18 Weintraub, 471 U.S. at 358.

19 See, e.g., 274 F.3d at 573; In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120, 125 (3d Cir. 1986).

20 In re Grand Jury Proceedings, 156 F.3d 1038, 1041-42 (10th Cir. 1998).

21 Grand Jury Subpoena, 274 F.3d at 571.

22 Seward, J. "What You Need to Know About a Debtor's Leased Computers." LJN's Equipment Leasing Newsletter, Law Journal Newsletters, December 2003 (www.ljnonline.com).

23 11 USC §542 (computers, digital and electronic storage equipment, digital media and ESI belonging to the debtor).

24 11 USC §543 (computers, digital and electronic storage equipment, digital media and ESI from the debtor and in the possession of professionals, insiders and others).

25 See the following articles for an in-depth analysis on the subject of computer forensics and the discovery, recovery, and use of electronically created and stored "information" in bankruptcy: Seward, J. "The Debtor's Digital Reckonings," International Journal of Digital Evidence, Fall 2003, www.ijde.org/docs/03_fall_seward.pdf; Seward, J. and Austin, D. "E-sleuthing and the Art of Electronic Data Retrieval: Uncovering Hidden Assets In The Digital Age," American Bankruptcy Institute Journal, Part I February 2004, Part II March 2004 and Part III April 2004; Seward, J. "The Debtor's Digital Autopsy or Where's The Money!" NABTalk Journal of the National Association of Bankruptcy Trustees, Summer 2003; "How Digital Forensics Can Give You an Edge," Bankruptcy Law & Litigation Report, National Litigation Bureau April 2004; Seward, J. "The Debtor's Survival in the Digital Age," American Bankruptcy Institute Journal, June 2004; Seward, J. "Digital Stealth Secrets and the Act," LJN's The Corporate Compliance & Regulatory Newsletter, Law Journal Newsletters, March 2004 (www.ljnonline.com). Musso, R., Winer, B., Austin, D., Seward, J. "Zero Tolerance for Commercial Bankruptcy Fraud," American Bankruptcy Institute Journal, December/January 2006.

26 Hanson, 372 F.3d at 294.

27 Mr. Seward was the co-presenter and co-author of the paper, "Protecting Client-CPA—Attorney Information in the Electronic Age" at the American Accounting Association, Northeast Region NY, April 2005. That paper was subsequently accepted for the "Research Forum" at the International Meeting of the American Accounting Association Annual Meeting, August 2006.

28 Gray v. Bicknell, 86 F.3d 1472, 1483-84 (8th Cir. 1996).

29 86 F.3d at 1483.

30 Id.; see also In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989).

31 86 F.3d at 1483.

32 86 F.3d at 1484; see also Atronic Int'l, GMBH v. SAI Semispecialists of America Inc., 232 F.R.D. 160 (E.D.N.Y. 2005) (applying multi-part test to inadvertently disclosed e-mails).

33 Bicknell, 86 F.3d at 1484; see also Atronic, 232 F.R.D. 160.

34 In re Grand Jury Proceedings, 219 F.3d 175, 183 (2nd Cir. 2000).

35 See, e.g., Williams v. Sprint/United Mgmt. Co., 2006 WL 1867478 (D. Kan. 2006); Curto v. Medical World Communications Inc., 2006 WL 1318387 (E.D.N.Y. 2006); Premiere Digital Access Inc. v. Central Telephone Co., 360 F.Supp.2d 1168 (D. Nev. 2005). But see Hernandez v. Esso Standard Oil Co., 2006 WL 1967364 (D. P.R. 2006) (holding that privileged was waived despite inadvertent disclosure).

36 See Fed. R. Civ. P. 26(f)(4) (effective Dec. 1, 2006) and Advisory Committee Notes thereto; see also proposed Federal Rules of Evidence Rule 502 on Waiver of Attorney-Client Privilege and Work Product.

37 See, generally, Latz, Martin E., "Gain the Edge!," St. Martin's Griffin (2006 Ed.).

38 Id.

39 American Bar Association, Formal Opinion No. 05-437. This new formal opinion was in response to the amendments to Rule 4.4(b) of the ABA's Model Rules of Professional Conduct.

40 Phoenix Four Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y. 2006).

41 Id.

42 Id. (emphasis in original and citations omitted).

43 See Mello, John P. Jr., "Are Your Business Partners an IT Threat?" CFO.com, Oct. 16, 2006.

44 Schweitzer, Douglas, "E-mail Insecurity in a Litigious Society," www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=111607, June 26, 2006.

45 Dickinson, John, "Instant Messaging and the Security Pro," www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9003796&pageNumber=1, Oct. 2, 2006.

46 See Reed, Travis, "Speech-to-Text App Beats Fastest Text Messenger," www.newsfactor.com, Oct. 25, 2006.

47 See Linderholm, Owen, "Why Security Audits are Critical for the Modern Enterprise", ITSecurity Features Aug. 30, 2006, www.itsecurity.com/ features/interview-jack-seward-security-audit-083006/.

48 Including, but not limited to, Ad-ware, Anti-Forensics, Botnets, Countermeasures, Evidence Altering Tools, Hacking, Key Loggers, Password Cracking, Peer to Peer, Root Kits, Spyware, Surveillance, Steganography, Trojans, Virus, Wireless, and Worms; understand that hundreds of additional risks and vulnerabilities do exist to electronic communications with only some of them being reported, perhaps only fixed until the next "weekly list" hits our security community.

49 Mr. Seward received the following message from Zone Labs LLC in response a frequent event, the unsuccessful attempts to install a Trojan(s) on his laptops during October 2006: "Trojan: Enables a remote user to control your computer. It runs in the background and opens a back door on your computer. The back door allows an unauthorized remote user to connect to and access your computer, circumventing your computer's security. When you connect to the Internet, this program notifies the remote user that your computer is vulnerable. This program may also have built-in tools used to manage your files, run executables on your computer, control your mouse and CD tray, retrieve passwords, keystrokes and screen shots. Automatically downloads from the Internet and runs (or installs) additional files without the user's knowledge or permission. Some downloaders may download and install malicious software. In addition to downloading and installing other software, it may download updated versions of itself. Enables a third party to perform potentially unwanted or unauthorized actions on user's computer via a network connection. How dangerous is it? This program enables a remote user access to your entire computer and everything on it. The program includes server software that allows a remote user to connect to your computer and have complete access and control over it."

50 See, e.g., Atronic, 232 F.R.D. 160.

51 See Seward, J. "The Debtor's Digital Reckonings," International Journal of Digital Evidence, Fall 2003, www.ijde.org/docs/03_fall_seward.pdf.