3 ms·

Still privileged. Jurisdictions vary, but generally the question is wether the broader dissemination was intentional.

AnthonyMouse 5y ago
Then the other side gets to argue that everybody knows or should have known that The Cloud works like that, and accuse you of doing it intentionally because you wanted the cost savings or convenience of the product with those terms. Also, "jurisdictions vary" can be quite a relevant caveat for all the people in the jurisdictions that vary.
- deleted 5y ago
  [deleted]
pdabbadabba 5y ago
Maybe so. But your client will still be pissed that, from their perspective, your carelessness put them at risk. In my practice, it would be a disaster for this question to even arise.
- tiahura 5y ago
  What’s your practice area? Most big law firms outsourced photocopying 15 years ago. Not to mention outsourced doc review and ediscovery hosting. See generally FRE 502(b).
  - pdabbadabba 5y ago
    I'm a regulatory lawyer working in telecom and commercial space policy, though I'm not sure it's my practice area that's primarily driving my thinking here. (Though it may also be true that, since I am not primarily a litigator, I have different confidentiality concerns in mind that some other lawyers. My firm and I do take these issues very very very seriously--perhaps in ways that would be impractical for a different firm in a different area of practice.) Although I'm certainly aware of the proliferation of outsourced doc review and e-discovery, I would hope that the firms using these services are reviewing their agreements with these providers to make absolutely sure that they do not include language like GP posited: that they may "keep a copy of it and sell the contents to third parties or use it for advertising." Whatever the implications may be for attorney-client privilege, this also creates a risk of actual disclosure to hostile third parties, which would be a huge issue if you were working on anything commercially sensitive. I'd also note that, depending on one's practice, you might also find yourself adverse to national governments. That creates a whole new risk profile with respect to could-hosted document management services, etc.

Then the other side gets to argue that everybody knows or should have known that The Cloud works like that, and accuse you of doing it intentionally because you wanted the cost savings or convenience of the product with those terms. Also, "jurisdictions vary" can be quite a relevant caveat for all the people in the jurisdictions that vary.

deleted 5y ago
[deleted]

pdabbadabba 5y ago

Maybe so. But your client will still be pissed that, from their perspective, your carelessness put them at risk. In my practice, it would be a disaster for this question to even arise.

tiahura 5y ago
What’s your practice area? Most big law firms outsourced photocopying 15 years ago. Not to mention outsourced doc review and ediscovery hosting. See generally FRE 502(b).
- pdabbadabba 5y ago
  I'm a regulatory lawyer working in telecom and commercial space policy, though I'm not sure it's my practice area that's primarily driving my thinking here. (Though it may also be true that, since I am not primarily a litigator, I have different confidentiality concerns in mind that some other lawyers. My firm and I do take these issues very very very seriously--perhaps in ways that would be impractical for a different firm in a different area of practice.) Although I'm certainly aware of the proliferation of outsourced doc review and e-discovery, I would hope that the firms using these services are reviewing their agreements with these providers to make absolutely sure that they do not include language like GP posited: that they may "keep a copy of it and sell the contents to third parties or use it for advertising." Whatever the implications may be for attorney-client privilege, this also creates a risk of actual disclosure to hostile third parties, which would be a huge issue if you were working on anything commercially sensitive. I'd also note that, depending on one's practice, you might also find yourself adverse to national governments. That creates a whole new risk profile with respect to could-hosted document management services, etc.