[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

5. At the end of the messages described above, we occasionally encountered e-mail
threads that were sent to others after the initial interaction with the lawyer ended.
This additional dissemination of the e-mail thread was found not to be privileged
when the conveyance was by a non-lawyer recipient, unless it was clear that legal
advice previously obtained was being circulated to those within the corporate
structure who needed the advice in order to fulfill their corporate responsibilities.
When the conveyance was by the lawyer and it appeared that it was for the purpose
of acquiring more information upon which more informed legal advice or assistance
could be rendered, the additional conveyance and response were also found to be
privileged. . . .
IV. CONCLUSION
The emergence of the internet and electronic methods of communication present
significant challenges for traditional discovery practices. These challenges are exacerbated in
MDL proceedings and otherwise complex cases where, because of their vastness, no one
counsel can be expected to keep up with everything that transpires. . . .
When privilege is claimed on 30,000 documents, amounting to nearly 500,000 pages,
as occurred in this case, the courts are severely taxed. When the task of review is shifted to
outside experts, costs mount. 35 > In the long run, such a situation is detrimental to the
litigants, the courts, and our system of justice. Some acceptable solution must be devised,
one which fully protects the rights of the litigants to claim privilege and at the same time is
more feasible for the courts, less expensive for the parties, and less time consuming for
everyone involved.
. . . It may be desirable to issue a pretrial order setting forth an appropriate method of
organizing documents to be submitted for in camera review and establishing mandatory
guidelines for the creation of a detailed privilege log that identifies the individuals that
author and receive each document and explains their relationship to the document and to
the party asserting the privilege. . . .
Problem
6-5. Clean Energy, Inc. operates multiple coal-fired power plants. Its CEO is
concerned whether the company is meeting air quality standards. He suggests that they do
an audit. The general counsel responds, “Let’s have the lawyers do it. That way, it will be
privileged, just in case the results are not so favorable.” Clean Energy’s general counsel
interviews 25 employees at five different plants and later decides to hire an outside law firm
to complete the investigation. “That will help secure the privilege.” Is general counsel
correct?
Swidler & Berlin v. United States
524 U.S. 399 (1998)
175