eDiscovery Daily Blog
eDiscovery Law: Inadvertent Production is Inevitable, So How Do You Protect Yourself?
With exploding volumes of electronically stored information (ESI) being required in discovery proceedings, there is more chance than ever of inadvertently producing materials that should have been protected by privilege. No case exemplifies that better than the current eDiscovery malpractice case involving McDermott, Will & Emery discussed in this blog here, here and here where McDermott’s former client, J-M Manufacturing, has contended that 3,900 privileged documents were erroneously produced. It is virtually impossible these days to keep every item from production that is protected by attorney-client or work product privilege.
Fortunately, there are protections against a claim of privilege waiver through inadvertent production. The two most common historical protections are “quick peek” agreements and “clawback” provisions.
“Quick Peek” Agreement
“Quick peek” agreements are available, but not very common, because they present challenges for both parties in a lawsuit.
Instead of reviewing documents, everything is presented for a "quick peek." The requesting party is obligated to sort through all of the evidence and select the documents they wish to have presented for discovery. The producing party then has the opportunity to review those documents for privilege. The onus of review and labor for reviewing the entire collection is on the requesting party, but the producing party must be willing to accept the risk that opposing counsel will use any privileged information viewed against them, even if that information hasn’t been produced.
“Clawback” Provision
The more common protection is known as a “clawback” provision or “clawback” agreement. A part of the protective order made by the court early in a case, a “clawback” provision is an agreement between both parties that any discovery documents that are accidentally produced when they should have been protected by privilege are to be destroyed or returned upon request.
This kind of early agreement is usually simple and straightforward. It protects parties from disagreement over specific documents and prohibits the requesting party from making a claim of waiver. Of course, parties don’t always agree to enter in such an agreement and sometimes courts have to decide.
One More Protection: Federal Rule of Evidence 502
In addition, the Federal Rule of Evidence (FRE) 502 was created in 2008 to provide additional protection. Before this rule was brought in, it has been argued, and sometimes upheld, that despite agreement between the parties as to no waiver through inadvertent production, that agreement did not extend to other parties in other proceedings. Waiving privilege on a single document has often constituted a waiver for all other documents on the same subject (called “subject matter waiver”). FRE 502 provides extra protection in these cases.
But, more on that tomorrow!
So, what do you think? Have you ever been in a situation where you had to rely on one or more of these protections to deal with inadvertent production in a case? How did that work out for you and/or your client? Please share any comments you might have or if you'd like to know more about a particular topic.