In 2003, following on the footsteps of years of dot com success, flashy TV ad campaigns, and boom time excess, Brobeck, Phleger and Harrison, a major Silicon Valley law firm with a heavy focus on the technology industry and an 80 year history of practice, imploded and shut down. The liquidation ended up in Chapter 7 Bankruptcy and what remained of the firm ended up at the disposition of Bankruptcy Court.
In August, 2006, the court authorized the Library of Congress’ National Digital Infrastructure Preservation Program to begin archiving Brobeck’s digital records which contain a significant volume of contracts, drafts, memos and documents crafted by Brobeck staff. It was argued that material is historically significant.
From the website : “even if research access to these records is decades away, preservation demands intervention now” and “the artifacts left in the wake of Brobeck – including digital materials documenting the operation of the partnership and the work it’s lawyers did on behalf of more than 10,000 clients – [contain] a wealth of historical information.”
Over the past five months news of the decision has slowly spread and unfavorable reactions have grown from a whisper to a grumble. In December several articles and blogs referenced the Archive.
Yesterday, I emailed the link for the closed archive to a handful of friends and colleagues I worked with at a competitor to Brobeck during the mid nineties dot-com boom. We all were aware of the firms implosion, and all knew people who’d once worked there. None of the people I sent the link to were aware of the archive and virtually all the attorneys, were extremely concerned about the implications. (A few even jumped into rants about the sanctity of priviledge, work-product and confidentiality in law).
The Archive, or it’s representatives, have stated that they are “aware that [the] files are subject to attorney-client confidentiality…and that they will remain that way.”; that safeguarding measures are in place; and, that the documents won’t be available through a simple Freedom of Information Act, but doubts remain. While documents of clients who were individuals (defined as a Natural person as opposed to a business entity) and documents relating to Brobeck’s employment or partnership issues will be excluded, the protections seem incomplete.
Playing with the sanctity of attorney client confidentiality is dangerous ground and a slippery slope. I’m not sure this material should be available to researchers, now or ever. But if it is going to be archived for historical research, access to it should prohibited for a substantial, predetermined period of time, say twenty years or more. Put it on a secure, non-networked database, and forget about it until enough time has gone by that the data is no longer sensitive, or harmful, if it’s released or mishandled.
The following are just some concerns:
Rights of the individual or non-client
A client company can opt-out but what protections exist for staff and management whom, though not the client, had a reasonable expectation of privacy. For example, Company X is gone, but can its VP’s employment agreement (which included two-way non-disclosure clauses) and compensation information be included in the archive? What protections exist to safeguard the privacy and personally identifiable data? Similarly, what protections exist for the privacy of Company Y, which is still around, but wasn’t represented by Brobeck, but did have contractually confidential agreements with Company X that Brobeck attorneys drafted?
Corporate liability exposure
Noting that Apples recent stock options backdating inquiry was triggered by a university of Iowa professor doing research. What’s to protect against some future researcher inadvertently discovering a similar trail of breadcrumbs that leads to the next scandal-to-be in documents containing information that was only disclosed because of the confidentiality between client and lawyer? Consider, in a criminal proceeding, a case founded on information illegally obtained by law enforcement would likely fall apart unless there was unique evidence not derived from the poisoned-fruit of that illegal data. But if the incriminating data was found in harmless research and turned over to law enforcement? Then it wouldn’t be an illegal search and seizure and might well be admissible, as would all derivative findings.
when a large pool of sensitive data is handled, mistakes are made that can have catastrophic consequences. Ask any of the several companies whose employees have accidentally forward credit card info, or other Personally Identifiable data, in a mass email.
The archive sates that “only documents which may one day have historic or education value, and may, in the future, be appropriate for inclusion in a traditional archive, will be transferred to the closed archive.” Who determines what is appropriate, and as government controlled data – what exceptions keep this from being available now, or later, by the Freedom of Information Act.
Trademarks, Copyright, trade secrets and rights of privacy
These can be persistent legal constraints. What ensures they remain protected once in the archive? What keeps a contract that had non-disclosure provisions in it from being disclosed if the party that wasn’t a Brobeck client doesn’t have the chance to opt out.