Every day, here in Washington D.C., scores of privileged legal
documents are turned over to unidentified, twenty-something bicycle
messengers-- never mind the hundreds of plain text fax transmissions,
and thousands of privileged documents that are dropped in a mailbox--
without anyone ever suggesting that the insecure delivery mode might
compromise the privilege. The unencrypted digital transmission,
overseas or domestic, is less insecure than any of those delivery
options.

In all the cases I can remember seeing on this issue, the only way I
recall anyone ever losing the privilege was by accidentally turning a
privileged document over to the other side-- and even then, courts
struggle to undergird the privilege by finding that mistakes happen
despite due care.

There's a vast difference between what one /should do/ to maintain
confidentiality /in fact/, and what one /must do/ to preserve the
privilege /as a matter of law/. Kevin arguably describes what a
careful lawyer should do, but not a court in the country would
require it.

John Noble

At 4:14 PM -0400 5/28/08, Kevin T. Neely wrote:
>On Wed, May 28, 2008 at 03:56:15PM -0400, Carol Shepherd wrote:
>> Looking for opinions on the intersection of attorney-client privilege
>> and government monitoring of commercial communications between US firms
>> and offshore service providers. A DC law firm has sued the government
>
>
>(without reading the article, well, I skimmed it *very* briefly) Is
>the firm either 1) not encrypting the data end-to-end or 2) claiming
>the government can/does break the encryption to read and analyze the
>data? I believe a law firm has a duty to use reasonable means to
>protect the attorney-client priv and to not encrypt the data with
>strong encryption would, IMHO, constitute a breach of that duty.
>
>I am going to include the phone conversations between lead attys in
>the US and the reviewers in India as something that ought to be
>encrypted.
>
>K
>
>--
>In Vino Veritas
>http://astroturfgarden.com
>
>
>
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