10. Protecting Privilege, Privacy, and Word Product
a. E-Discovery can be limited if:
i. You can obtain ESI from other low cost sources
1. E.g. SEC filings.
ii. ESI is unreasonably cumulative or duplicative
1. Don’t have to disclose thousands of emails that indicate the same fact.
iii. Burden or cost outweighs the usefulness of information or its probative value
b. Confidential v. Privileged Information
i. Privileged information has more protection under FRE 501; FRCP 26 and 45.
ii. In either case the information can be subject to some projection only when its not relevant to the case.
c. Work Product Protection
i. Work product is not privileged within the meaning of the FRE, but it is safeguarded by FRCP 26(b)(3) and FRCP 45(d)(2), which grants protection to documents and tangible things that meet two criteria:
1. They're prepared in anticipation of litigation or for trial.
2. They're created by or for a party or its representative.
ii. To invoke court’s protection:
1. Verify that the ESI is a trade secret or proprietary research.
a. Value to company and in market.
b. How easy to duplicate research
c. Time and effort in development
d. Efforts to protect information internally.
2. Assert that the ESI is a trade secret or proprietary research
a. Info has separate economic value.
b. An effort has been made to maintain its secrecy.
d. E-Discovery of Confidential Information
i. Request ESI for information from other party under FRCP 26 or from third parties through a subpoena FRCP 45.
e. Special Masters
i. Judge can use special master under FRCP 53 to handle ESI related disputes, and parties can request one.
1. Facilitating the e-discovery process
2. Monitoring compliance
3. Assisting in technical disputes
4. Adjudicating legal disputes related to ESI
5. Assist in developing preservation protocols.
6. Work with parties to establish e-discovery agreements.
f. Granting or Avoiding a Waiver
i. Intentional disclosure is a waiver, and will generally apply to all other ESI of the same subject matter.
ii. FRE 502(a) limits a waiver to the materials disclosed and not the entire subjection matter of the communication.
g. Asserting a claim
i. Assert confidentiality – certain ESI not relevant – request protective order under FRCP 26(c)(1) . Must be accompanied with certification that you’ve conferred in good faith or made good faith effort to confer with other parties.
ii. Assert privilege or work product protection – don’t use a protective order. Instead:
1. Expressly set forth the claim of privilege being asserted.
2. Provide information about the nature of the ESI withheld to the requesting party to enable them to analyze your assertion.
h. Applying FRE 502 to Disclosure
i. Also, intentional disclosure in a federal case or to a federal office or agency (for example, the IRS or SEC) waives the privilege or protection only for the ESI disclosed. It is not a subject matter waiver.
ii. If the intentional disclosure is meant to mislead or is put forth in an unfair manner, it will be considered a subject matter waiver and applies to all related ESI.
iii. FRE 502 treats an inadvertent disclosure as a clawback agreement
i. Agreement Types
i. Quick-peek – based on agreed filtering protocol, not a waiver of privileged or protection.
iii. Clawback agreements – taking back protected or privileged ESI. Need express language on:
1. Inadvertent disclosure or ESI production protected by work production isn’t a waiver and can’t be admitted in court.
2. Upon request, ESI returned expeditiously.
3. If privileged or protected ESI is received, must notify and return in a prompt manner.
4. Must provide names of all with access to ESI and secure return if disseminated to third parties.
5. Successful party in litigation entitled to costs and attorney fees incurred to enforce it.
j. Shoring up agreements by court order
i. Agreement may not extend waiver protection to other actions. Any ESI disclosed by court order is not deemed a waiver in other matters because the disclosure isn’t voluntary.
ii. Can be incorporated into:
1. Scheduling Order under FRCP 16 after meet and confer report or attorney consultation – court enters order for deadlines, discovery, and privilege/protection agreement.
2. Protective Orders under FRCP 26(c) protect against annoyance, embarrassment, oppression or undue burden by forbidding or limiting discovery.
3. Discovery management orders under FRCP 26(b)(2) – court can alter extent of discovery.
iii. Can later assert disclosure not voluntary and pursuant to court order. If not incorporated in court order, just contractual.