Here's another installment of my outline of Electronic Discovery and Digital Evidence in a Nutshell, the second edition of the West Academic guide to electronic discovery law in the United States authored by Judge Shira Scheindlin (the judge in the Zubulake v. UBS Warburg) and members of the Sedona Conference. An outline of the previous chapter was posted on March 20, 2017.
XI. PRIVILEGE ISSUES ARISING DURING ELECTRONIC DISOCVERY
A. RISKS OF WAIVER AND THE COST OF PRE-PRODUCTION PRIVLEGE REVIEW OF ELECTRONIC DATA
a. Mohawk Indus. v. Carpenter (U.S. 2009) adverse ruling in the privilege question is not immediately appealable.
b. FRE 502 adopted in September 2008
i. Mistaken disclosure never constitutes subject matter waiver.
ii. No waiver if party took reasonable steps to prevent disclosure and rectified once discovered.
1. Review process more likely to be reasonable if only a small portion disclosed.
2. Was there an accelerated deadline?
3. Were search terms reasonable?
4. Efficient records management system before litigation arises.
5. Levels of review and amount of eyes-on review.
iii. Coburn Group v. Whitecap Advisors (N.D. Ill. 2009) –
1. Use of paralegals closely supervised by a lawyer was not unreasonable.
2. Not unreasonable to forgo post-production review.
iv. FRE 502(c) privileged docs disclosed in state proceeding then admissibility in federal proceeding determined by law that is most protective against waiver.
v. FRE 502(d) – if fed. ct. orders that disclosure of privileged communications is not waiver then order enforceable against all parties in any state or federal proceeding.
vi. Rajala v. McGuire Woods, (D. Kan. 2010)
1. Court can issue 502(d) order sua sponte.
2. Good cause if volume of production high, risk of inadvertent disclosure great, and order would expedite the e-discovery process.
vii. 502(d) order only extends to proceeding in which it is entered.
viii. 502 (e ) parties can enter into a confidentiality agreement that provides protection against waiver.
B. AGREEMENTS BETWEEN THE PARTIES TO CONTROL THE COST OF PRE-PRODUCTION PRIVILEGE REVIEW OF ELECTRONIC DATA.
a. Quick peek agreements – requested materials provided for initial examination without any privilege. Requesting party designates the documents it wants produced.
b. Clawback agreement – no waiver if producing party identifies the documents; they must be returned.
c. Clawback and quick peek agreements do not bind non-parties absent a 502(d) order.
C. WHAT PRECAUTIONS SHOLD BE EMPLOYED?
a. Victor Stanley v. Creative Pipe (D. Md. 2008) – party requesting inadvertently produced documents has the burden of showing its review was reasonable. Burden not met because:
i. No information on keywords used.
ii. No Rationale for keyword selection.
iii. No qualification to design information retrieval method.
iv. No analysis to test reliability of results.
b. in some states— Texas for example— there is no risk of inadvertent waiver, because those states hold that any waiver of privilege must be intentional.
D. ETHICAL QUESTIONS INVOLVED IN RECEIVING MISTAKENLY DISCLOSED PRIVILEGE INFORMATION
a. FRCP 26(b)(5)(B) – if no confidentiality agreement, if receiving party is notified of mistaken disclosure by adversary it must promptly return or destroy the data. Party can ask a court if the data is protected.
b. If it would be cost prohibitive for the receiving party to retrieve the information court may find that privilege was waived.
c. Rule 26 does not require the receiving party to tell the producing party that privileged information was disclosed, but ABA Model Rule 4.4 says receiving party must notify the producing party of the mistake.