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Today’s Most Challenging Litigation Cost Issues: Privacy, Privilege And Over-Preservation Related To ESI
by Mary Mack, ZyLAB

Yes, in the last few weeks, two judges, Judge Waxse and Judge Maas, both enforced FRE 502(d) clawbacks, although Judge Maas titled his a Rule 502(d) Stipulation Order. Most practitioners have started using FRE 502(b) clawbacks, which requires showing a standard of care in handling privileged information for a disclosure to be deemed an inadvertent waiver. With properly drafted 502 (d) clawbacks, if it is privileged and produced, it can be returned. While these cases needed court involvement to be enforced, as time goes on, I believe there will be much less cost and drama in getting privileged documents back.

Of course, the bell does not unring. The level of diligence should not be relaxed entirely. Judge Waxse’s case is Rajala v. McGuire Woods, LLP, Civil Action No. 08-2638-CM-DJW, USDC, Kansas, Jan. 3, 2013. The model order reads in part: “The inadvertent disclosure or production of any information or document that is subject to an objection on the basis of attorney-client privilege or work-product protection, including but not limited to information or documents that may be considered Confidential Information under the Protective Order (doc. 40) entered in this case on January 4, 2010, will not be deemed to waive a party’s claim to its privileged or protected nature or estop that party or the privilege holder from designating the information or document as attorney-client privileged or subject to the work product doctrine at a later date. Any party receiving any such information or document shall return it upon request from the producing party.”

Fed Rule of Evidence 502 Affects e-Discovery

Fed Rule of Evidence 502 Affects e-Discovery

"Federal Rule of Evidence 502, which took effect in September 2008, aims to ease fears that companies could accidentally waive attorney-client or work-product protections when they turn over reams of electronic data during litigation. The rule imposes uniform federal standards regarding such waivers. The rule was also widely touted as a way to relieve the crushing costs associated with the discovery of electronically stored information, but so far it hasn’t seemed to live up to that promise.

Among those who say Rule 502 is already having an effect are Cecil Lynn, of counsel in the law firm Ryley Carlock & Applewhite. He says the rule “provides a level of confidence” for litigants taking reasonable steps to prevent accidental disclosure. Lynn says he’s seeing more use of search-and-retrieval technology to cull privileged data prior to lawyers’ review, which should save money, time, and resources."

New Rule 502: A Little Help Is Better Than None

New Rule 502: A Little Help Is Better Than None

"Make no mistake about it. For every lawyer who ever feared sending privileged communications to a non-privileged person -- in particular the other side -- the president's recent signature on an amendment to Federal Rule of Evidence 502 is a godsend.

One of the great fears of such an accidental mistake is now substantially ameliorated. And the relief does not come any too soon. In a world of electronic discovery and the possibility of sending an e-mail to the wrong person by looking at one's computer keyboard cross-eyed, Rule 502 will now assure the errant lawyer that the mere act of sending privileged documents to an unintended recipient will not act as a waiver of the subject matter of the inadvertently disclosed communications so long as the lawyer took reasonable care in the review of the documents.

Indeed the legislation goes as far as jurisprudentially possible to provide this protection not just in federal court but in certain state court proceedings.

So can we neurotic lawyers now breathe a big sigh of relief that the Congress has come to our rescue? Not really. Because four really important issues in this context are not addressed by new Rule 502."

Poorly Executed Privilege Review Can Lead to Waiver

Poorly Executed Privilege Review Can Lead to Waiver

"Slowly but surely, U.S. Magistrate Judge Paul Grimm is writing a treatise on electronic discovery. In Hopson v. Mayor and City Council of Baltimore,[FOOTNOTE 1] he tackled privilege waiver and warned litigants about the risks of so-called "quick peek" and "claw back" agreements. And in Lorraine v. Markel Amer. Ins.,[FOOTNOTE 2] he reminded lawyers to think critically about the admissibility of electronically-stored information. In his latest ruling, Victor Stanley Inc. v. Creative Pipe Inc., 2008 WL 2221841 (D. Md. May 29, 2008), Grimm revisits the privilege waiver issues at the heart of Hopson and wades into the debate over search methodologies. In the end, his privilege ruling is no surprise and his comments on search methodologies will do little to calm those who are concerned that recent decisions could require litigants to hire experts to defend their chosen search methodology."

E-discovery error waives attorney-client privilege

E-discovery error waives attorney-client privilege

"Grimm’s 43-page opinion is notable for the standard it sets and the guidance it provides, Rothschild and others said.

“What Judge Grimm has done is give a roadmap to lawyers in the United States on how to present to a court how they went about searching for relevant documents,” said Jason R. Baron, director of litigation at the National Archives. Baron was the editor of a Sedona Conference Best Practices Commentary on e-discovery, cited in Grimm’s opinion.

Though Creative Pipe had hired an e-discovery expert, had spent weeks reviewing documents, and had said the disclosures were inadvertent when the plaintiffs asked about them, it still hadn’t done enough, according to Grimm. "

"Claw-Back": Be Specific and Timely

In re '318 Patent Infringement Litig., Case No. 05-356 (D.Del. Mar. 1, 2007)

This case illustrates the importance of specifying the scope of the right to "claw back" inadverdently produced privileged information, and of timely exercise of that right.  (FRCP Rule 26(b)(5)(B) addresses the claw-back issue.)

The document in question was identified at the deposition and the deponent was questioned about it.  Yet, the moving party argued "that they should be excused from their untimely request for return [of the document] because the document was not really 'used.'"