[Pct] Notification/reporting correspondence to clients - PDF vs. email body

[Krista Jacobsen]

On the other hand, when information is transmitted via e-mail, there is
clear evidence of a communication between attorney and client, and you can
see exactly what was communicated. Although an adversary might argue that
the communication was not privileged because it wasn't confidential (e.g.,
maybe someone was cc'd who shouldn't have been cc'd) and/or wasn't made for
the purpose of giving or seeking legal advice (the more likely argument,
IMO), at least the "communication from/to attorney to/from client" part of
attorney-client privilege is easy to prove.

When using a secure server, how do you prove that there was in fact a
communication between attorney and client, and what was communicated? I
wouldn't think mere client access to the server where drafts are kept would
be enough. (If it were, you could shield grandma's secret meatloaf recipe
from discovery simply by saving a copy to your secure server.) Do you track
logins and file access in order to be able to prove that there was
communication of a particular document?

Maybe it is well known how to do this, and I'm just not up on it. But it
seems like generating a privilege log would be a lot more work and also
would be more likely to be challenged.

I am also on Team No Attachments except for things like engagement letters,
termination letters, invoices, etc.

Best regards,
Krista

------------------------------------------
Krista S. Jacobsen
Attorney and Counselor at Law
Jacobsen IP Law
krista at jacobseniplaw.com
T:  408.455.5539
www.jacobseniplaw.com


On Wed, Feb 14, 2024 at 5:01 PM Gerry Peters via Pct <pct at oppedahl-lists.com>
wrote:

> I encourage clients to keep privileged/confidential communications out
> of email and to correspond instead via secure server, for which I
> find doc or txt files to be far more convenient than pdf. I also prefer
> having a shared folder hierarchy that tracks case history rather than
> having to hunt for the latest version of a draft which may be buried in
> an email attachment. I note that large companies that have experience
> with US discovery procedures also tend to use a similar system and
> avoid putting sensitive content in email.
>         ---Gerry
>
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