Finding “what you need when you need it” sounds simple enough, but the dramatic explosion of electronically stored information generated worldwide over the last few years has left individuals, business organizations, and even governments seriously challenged with knowledge management.
However, to the extent that the information is subject to the attorney-client privilege, that privilege usually is deemed waived when such materials are shared with a third party for purposes unrelated to the rendition of legal advice. Despite recent efforts by the DOJ to reverse course, a broad bipartisan coalition has formed to support legislation that will restore the privilege. NARA has concerns with the bill, however, and the Justice Department has its own set of issues relative to legal and regulatory preservation matters.The coalition includes the American Civil Liberties Union, National Association of Criminal Defense Attorneys, and Clinton DOJ officials Walter Dellinger and Seth Waxman as well as conservative legal legends Ed Meese, Dick Thornburgh, Ken Starr and Ted Olson. 2002), Southern District of New York Judge Alvin Hellerstein held that Boston Scientific had waived work-product protection over board meeting minutes that reflected the substance of an investigation performed by outside counsel when Boston Scientific disclosed those meeting minutes to its outside auditors for purposes of analyzing litigation reserves. Congress would be well served in leveraging the substantial expertise NARA and the private sector have to offer in this area. Henry Waxman to investigate comments from White House spokesperson Tony Fratto asserting that he had no reason to believe any e-mails are missing.Since indictment is a death threat for most companies, especially publicly traded ones, complying with DOJ requests for privileged material cannot be considered voluntary in any way.