eDiscoveryDaily

“Clawback” of inadvertently produced privileged documents is a hot topic these days, with J-M Manufacturing’s recent clawback request in their case one of the latest examples.  For more information on mechanisms for “clawback”, check out our blog posts of the last two days.

A District of Columbia court has ruled against exclusion of a privileged email that was inadvertently produced by the defendant, ruling that the defendant’s actions before and after the discovery of the email’s production pursuant to Federal Rule of Civil Procedure 26(b)(5)(B) were not sufficient to ensure protections under Federal Rule of Exclusion (FRE) 502(b)(3), in a case involving alleged violations of the District of Columbia Whistleblower Act.

In Williams v. District of Columbia, No. 06-02076 (CKK), 2011 WL 3659308 (D.D.C. Aug. 17, 2011), the court ruled that the burden of preventing disclosure was on the defendant, and that its insufficient follow up showed “indifference,” and has thus denied the defendant’s Motion to Exclude the inadvertently produced email from evidence.

• As part of a “recommendation to terminate packet” produced by the defendant, the District of Columbia, in the course of this case, a privileged email was inadvertently included. This email is described as being included in the first ten pages of the packet.
• Defendant’s counsel sent an email to plaintiff’s counsel five months later, requesting the return of the email and its exclusion under Rule 26(b)(5)(B). There was neither any form of response from the plaintiff nor follow up from the defendant. Only when the email was introduced as an exhibit, more than two years later, did the defendant file its Motion to Exclude.
• The court considered whether the defendant had met the conditions of Rule 26(b)(5)(B) that a party must “discharge its obligations under Rule 502(b)(3),” and concluded that the defense was negligent in not taking enough steps promptly to remedy the mistake. The defendant’s inability to accurately portray its document review methodology or the number and type of documents produced were also cited as reasons that the defense was itself responsible for the waiver of privilege associated with the email in question.
• The court found that the defense’s single email request, with no follow up, was inadequate to protect its interest in the privilege of the inadvertently produced email, especially when considered in light of “the approximately two years and eight months before it filed a motion seeking the court’s intervention.”
• Accordingly, the court ruled against exclusion of the email under FRE 502(b)(3), stating that, “the only ‘injustice’ in this matter is that done by the defendant to itself…. The District’s failure to make reasonable efforts to guard against the disclosure in the first place and to rectify its error once discovered is fatal to its reliance on Rule 502(b).”

So, what do you think? Was the court fair in assigning fault to the defense, or should the benefit of protection under FRE 502(b)(3) have been accorded the District of Columbia in this case? Have you been involved in a similar case or situation? Please share any comments you might have or if you’d like to know more about a particular topic.

 

As noted yesterday, attorneys have reason to be worried about accidental waiver of privilege in today’s cases, where discovery of electronic documents reaches unprecedented volumes. With more electronically stored information (ESI) comes an increased risk of accidentally producing privileged information. Fortunately, there are provisions that can prevent some of the damage of such accidents.

Yesterday, we discussed “clawback” provisions and “quick peek” agreements. Both of these types of agreements can be used to protect against accidental waiver of privilege through production of the wrong documents for discovery. But, sometimes parties are unable to complete such agreements.  In other cases, these protections have been defeated by lawyers in court.  That's where Federal Rule of Evidence (FRE) 502 steps in to ensure that privilege is safeguarded when parties inadvertently produce privileged materials, assuming they take reasonable steps to avoid such inadvertent production.

FRE 502 was enacted in 2008, and it provides that:

• "Subject matter waiver", the idea that production of a single privileged document waives privilege on all related documents on the same subject matter, does not exist. If and when waiver occurs, it is limited to the documents and information that were actually produced.
• There is no waiver if the producing party takes reasonable steps to withhold privileged material or requests that materials accidentally produced be returned or destroyed.  Of course, what constitutes “reasonable steps” is open to interpretation.
• If parties have agreed that inadvertent production will result in no waiver, such an agreement is binding only on the parties involved unless it is part of a court order. The effect of the agreement is broader if the agreement is included in a court order.
• Any conflict between state and federal rules is determined by choosing the rule that provides the greatest protection of privilege.
• FRE 502 applies even if a case is conducted under state law.

FRE 502 is relatively new and is still being interpreted by courts, but one thing is clear: the greatest protection afforded by FRE 502 is present when parties have entered into a “clawback” agreement and requested that it be made part of a court order. However, there remains no definitive ruling on what constitutes inadvertent production of privileged information or what constitutes “reasonable steps” to avoid such inadvertent production.

So, what do you think? Does FRE 502 provide important protections, or does it overstep in protecting parties and attorneys who are negligent? What do you think is necessary for a party to claim that production was inadvertent? Please share any comments you might have or if you'd like to know more about a particular topic.