Electronic Discovery Navigator

New rule curbs inadvertent waivers

New rule curbs inadvertent waivers

"A recent law that amends the Federal Rules of Evidence will significantly limit the circumstances under which attorney-client privilege is waived during discovery, legal experts say.

While practitioners are split on the impact new Rule 502 will have on litigation, they agree that it will clarify the risks associated with privilege reviews of vast numbers of electronically stored information, or ESI.

Rule 502 is “absolutely a critical rule,” said U.S. Chief Magistrate Judge Paul W. Grimm in Baltimore. it will protect against waivers of privilege based on inadvertent disclosures and cut litigation costs — by as much as 75 percent in cases involving a lot of ESI, he estimated."

Ethics Of Destruction And Inadvertent Disclosure Of Documents And ESI

Ethics Of Destruction And Inadvertent Disclosure Of Documents And ESI

"Attorneys are obligated to maintain their client files on behalf of their clients. Although attorneys do not need to maintain their files indefinitely, they must maintain documents and information that, for example, might be relevant to reasonably anticipated litigation.

Clients have an ownership interest in portions of the lawyer's file and a right to access the client file. (See Model Rule 1.15(a) of Professional Conduct.) Which items in a client's file are the client's property will depend on the scope of the engagement, the jurisdiction and any agreement that exists between the parties. This determination takes on heightened significance, in terms of potential cost and obligation, in connection with electronically stored information (ESI) because e-mail and other electronic information exists in multiple "places" and in multiple forms. "

Court Ordered Inadvertently Disclosed Privileged Document Destroyed

Pierce v. Girl Scout of Greater New York, Inc., Case No. 06-cv-05456 (S.D.N.Y. Mar. 9, 2007)

This discovery dispute shows how the court would handle an inadvertent disclosure of privileged information where no claw-back agreement exists between the parties.  (FRCP Rule 26(b)(5)(B) addresses the claw-back issue.)

Defendants sought sanctions and a protective order to require Plaintiff to return or destroy a single privileged email that was inadvertently produced in discovery.  The email was an inquiry seeking legal advice and the response from Defendants' counsel, which the court concluded was "a privileged communication."