Our Insights on eDiscovery

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.

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. Today, we discuss the protections that Federal Rule of Evidence 502 provide.

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 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.