The city of San Jose, California has gotten itself into a tight spot after it accidentally leaked some confidential documents in a stack of paperwork given to Pillsbury Winthrop Shaw Pittman.
The documents were handed over as part of a California Public Records Act request between December 2011 and June of this year. Then in August public officials realized that not all of the documents were public records. The stack also contained 11 email chains that are confidential.
Most stories on this kerfuffle focus on the fact that Pillsbury won't turn over the documents. But it seems the more important issue is that 'San Jose in the past has inadvertently released other bits of privileged information,' according to Reuters.
Why is that happening?
It helps San Jose that ethical rules require attorneys to return accidentally leaked documents if they are privileged. But even with that provision once something is known it can't be unknown.
By accidentally turning over these documents during records requests the city is putting itself at risk continuously. While one time is an accident, the fact that it's happened before indicates there may be a bigger problem in how to turn over documents.
San Jose may be the one having the problem but are you sure your office wouldn't have the same issue? If you don't have a clear method to sort through documents for privilege now's the time to make one.
Government entities may have to turn over documents in records requests but attorneys have to do the same during discovery.
The volume of documents used in litigation make it unlikely that a haphazard method will uncover all the privileged information. Instead make a plan for how you'll review documents prior to production.
One way to tackle the amount of documentation required is to do several passes for different kinds of privilege rather than checking every document only once for a variety of different issues. Another is to rely on document review companies that specialize in this issue.
If you do outsource the initial review, make sure you give a once-over to any documents before they are released. Even if you can get the documents back it's better if they never get out. If you can't get it back, that makes things even more difficult.
San Jose is still fighting for the return of its documents, reports Reuters. A hearing on the issue is scheduled for November 6 when the city will try convincing a judge to force their return.
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