1 Lawyer Deep: How Attorney-Client Privilege is Destroyed

1 Lawyer Deep: How Attorney-Client Privilege is Destroyed

1 Lawyer Deep: How Attorney-Client Privilege is Destroyed 150 150 Jason Krause

John Quinn, Founder & Managing Partner at Quinn Emanuel, had one of the toughest jobs a lead attorney can ever have in a major case. Quinn had to face the presiding judge and explain to a dubious courtroom how his firm had managed to let confidential and privileged information leak to clients who had no business seeing it.

Protecting confidential information is one of a lawyer’s chief duties. Quinn told the court his firm had spent “millions of dollars” investigating the disclosure, which he says was inadvertent. But he very candidly told the court, “The reason [for this problem] is that nobody put it together … We are 650 lawyers wide and 1 lawyer deep. And one lawyer doesn’t necessarily know what another lawyer is doing.”

Privilege Waived: When Your Best Isn’t Good Enough

Apple v. Samsung will be remembered as an epic battle between the world’s dominant smartphone makers in court. But lawyers will probably remember the case as an abject lesson in how attorney-client privilege is waived.

The short version of the story is that during the ongoing Apple v. Samsung litigation, confidential documents wound up in the hands of Samsung employees, who used the information in business negotiations. These leaks were so egregious that Samsung’s law firm was hit with sanctions and could have been forced off the case.

Samsung counsel Quinn Emmanuel has protested that the disclosure was accidental. Accident or not, the damage is done, and the court noted “public findings of wrongdoing” by the firm and ordered payment of Apple’s and Nokia’s legal costs.

Leaked {$#!+*} Rolls Downhill

The problems began in March of 2012, when a partially un-redacted copy of an expert report was uploaded to a location where more than 90 high-level Samsung employees could access the information. On December 21, 2012, a young associate at the firm became aware that a document containing confidential business information had been uploaded to a location accessible by many Samsung employees.

And at one point, a Samsung employee was instructed to delete an email which included  unredacted licensing information, but it is not clear if that email was ever deleted. 

Despite these warnings, Samsung employees got a hold of this confidential and privileged material that had been part of the discovery phase of the litigation. According to testimony from one executive at phone maker Nokia, a Samsung employee even bragged that he had gotten confidential information through his attorneys, and used that information to his advantage in business negotiations.

That employee, Seungho Aho confidently is said to have declared, “all information leaks.” Finally, on July 1, 2013, Nokia filed a motion for a protective order and, in the words of  presiding Judge Grewal, “the current circus began.” Grewal summarized the failure this way:

A junior associate missing one redaction among many in an expert report is not exactly a historical event in the annals of big-ticket patent litigation. Even if regrettable, these things can happen, and almost certainly do happen each and every day. But when such an inadvertent mistake is permitted to go unchecked, unaddressed, and propagated hundreds and hundreds of times by conscious – and indeed strategic – choices by that associate’s firm and client alike, more significant and blameworthy flaws are revealed.

Sadly, a simple oversight was allowed to metastasize until it nearly destroyed an important case. Once leaked, information is difficult to pull back. However, we believe that there is a better way to control confidential and privileged information, even is large-scale, complex litigation. We’ll discuss more tomorrow.

For more information about this case though, you can read Judge Grewal’s Protective Order Regarding the Disclosure and Use of Discovery Materials. You can also read the order granting sanctions (Samsung’s appeal was denied).

You can download our free eBook for more information about protecting privilege.