When lawyers are managing eDiscovery there are really just three things they need to know for every document– is it responsive, non responsive, or privileged. Responsive they give to opposing counsel, non-responsive they ignore, and privileged documents must be protected. As the U.S. Supreme Court put it, “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Yet, somehow, privilege is still one of the most common and devastating failures in litigation.
When lawyers accidentally produce privileged material, their recourse is the Federal Rules of Evidence 502(b). Even if a legal team turns over privileged documents accidentally, they can get the documents back if they can show “the holder of the privilege or protection took reasonable steps to prevent disclosure.” That may seem like a simple standard, but courts have been reluctant to allow parties to claw back even obvious attorney-client work product once it has been produced.
Why Lawyers Fail
The most basic type of failure is when lawyers produce privileged documents and cannot show they made a good faith effort to prevent that production. Most recently, in D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), (D.N.J. May 30, 2012), the court denied the defendants’ motion to recover privileged documents. The producing party had identified privileged documents, and had a plan in place to remove those from their production. Unfortunately, the clerical worker who was asked to remove the privileged documents from the non-privileged documents reviewed less than half of all the data involved. Even worse, no one bothered to check that the clerk had properly done the job.
Similarly, in Thorncreek Apartments III, LLC v. Village of Park Forest, 2011 (N.D. Ill. Aug. 9, 2011, the defendants screened documents for responsiveness and privilege before making them available to Plaintiffs and marked documents as “responsive,” “non-responsive” and “privileged.” However, they assumed that privileged documents would automatically be excluded from their production database. If you’re starting to notice a theme here, you will guess that the defendants did not check to see that this was actually true, and sent the complete collection, including work product, to the plaintiffs.
Two months later, they became aware of the problem and tried to claim the material had been inadvertently produced and should not be allowed into the record. The court rejected their claim, noting the defendants didn’t bother to check their database before releasing it to plaintiffs, calling this a “verification check… one would have expected the Village to perform.” Worst of all, the court found an “abject failure of the . . . process to protect allegedly privileged documents,” and that defendants “did not succeed in identifying and withholding from production even a single privileged document.”
It’s a Problem All Over
In an ongoing, headline-grabbing case, an expert involved in the Ceglia v. Zuckerberg suit copied and produced the document he was instructed to recover but also included a privileged e-mail that was attached. Because no one associated with the legal team bothered to check the disk before it was sent to opposing counsel, the court ruled any claims of privilege had been waived.
And the problem is not just related to privileged documents or work-product. Earlier this year, Morgan Lewis partner Joseph Floren embarrassed himself and his firm when he inadvertently produced redacted documents in a high-profile securities case regarding a practice called naked short selling. The damning emails, found on pages 14-20 in this original document, containing excerpts of e-mails written by Goldman and Merrill employees, which provided fodder for a lot of bad press, including this Matt Taibbi piece blasting the bank in Rolling Stone.
It Shouldn’t Be This Hard
At this point, courts have made it clear that attorneys must take active steps to prevent inadvertent disclosure of privileged documents. Marking documents as privileged does nothing to protect them from disclosure if a litigation team hands them over to opposing counsel or other parties. Lawyers can never assume that marking documents as privileged in an electronic database will prevent their production.
This is a devastating, case-killing problem, but it does not need to happen. Look for some interesting news from Nextpoint in coming weeks offering a simple and effective tool for preventing inadvertent production of privileged material.