The 40 Privileged Emails and an Unreachable Attorney
Your supervising attorney represents a manufacturer in a federal employment discrimination case. On March 3, plaintiff's counsel served 34 requests for production by email. The firm issued a litigation hold 14 months ago, but an HR custodian deleted her local mailbox when she changed roles. IT recovered 1,200 emails from backup. Review shows 180 contain communications with in-house counsel and 40 of those are also responsive to Requests 12 and 19. Plaintiff's counsel proposed a clawback agreement but has not signed it. The response deadline is 30 days from service, plus 3 days because service was by email. The attorney is in trial, unreachable for two days, and told you to 'get it handled.' The client's HR director emails you directly asking whether she should delete her personal text messages about the termination.
1. What should you do about the 40 responsive, privileged emails, and can you make the production decision yourself?
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No. Privilege belongs to the client, and deciding whether to withhold or produce 40 responsive emails can waive or preserve protection worth the entire defense. A paralegal may organize, redact only under attorney direction, and prepare the privilege log-Bates range, date, author, recipients, request number, and asserted basis-but the attorney must make the call. Do not produce the 40, and do not silently withhold them either. Segregate them, continue reviewing the remaining 1,160, and get a signed clawback agreement or, better, a Rule 502(d) order before any risk of production. Notify in-house counsel and the supervising attorney in writing, preserve the backup, and document the chain of custody. If the attorney cannot be reached, ask opposing counsel in writing for a short extension tied to the privilege review, and calendar the request. 'Get it handled' is not authority to make a privilege waiver decision.
2. Calculate the response deadline and describe how you would calendar and protect it.
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March 3 plus 30 days is April 2. Because service was by email, add 3 days, making April 5. If April 5 falls on a weekend or court holiday, the deadline rolls to the next business day. Calendar it as a hard deadline and set an internal deadline at least five business days earlier for attorney review and privilege-log completion. Send written confirmation to opposing counsel stating the due date and agreed production format. Do not rely on an oral extension; if more time is needed, request or file a written extension before the deadline. Enter the date in the docketing system with a backup reminder, and note the method of service because it affects the calculation. Also check the court's standing order and local rules, which may alter discovery deadlines or require a meet-and-confer before a motion is filed.
3. How should you respond to the HR director's email about deleting her personal texts?
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Treat the email as a preservation emergency, not a client-service question. The duty to preserve arose when litigation was reasonably anticipated, and the hold covers relevant text messages on personal devices if she used them for company business. Reply briefly: do not delete, do not use auto-delete, preserve the device and any backups, and stop discussing the case over personal email. Do not tell her what the texts mean or whether they are discoverable-that is legal advice. Forward the email to the supervising attorney and in-house counsel immediately, document the time and your response, and ask IT to preserve her phone if it is company-managed. If she has already deleted messages, do not attempt recovery yourself; notify the attorney and preserve the backup. Spoliation can lead to adverse-inference instructions, sanctions, or a separate claim, so the paralegal's job is to stop the loss and create a record, not to decide relevance.