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Posts Tagged ‘inadvertent production’

Defending privileged documents in eDiscovery is not easy. The right to private communications is vital to the practice of law, but, with the explosion of digital evidence in litigation, lawyers are finding it increasingly hard to protect every single piece of attorney-client work product. Unfortunately, the courts have consistently ruled that even the smallest slip-up or mistake that lets any piece of privileged data go to opposing counsel means your privilege is waived.

Safeguarding Privilege Isn't Easy

Lawyers have to prove that they made every possible effort to prevent privileged information from leaking, but, despite their best efforts, the information somehow got through. Or, to put in judge-speak, “When a producing party claims inadvertent disclosure, it has the burden of proving that the disclosure was truly inadvertent.” Fox v. Massey-Ferguson, Inc., 172 F.R.D. 653, 671 (E.D. Mich. 1995)

We’ve reviewed the most recent and evolving case law on the topic. As with any unsettled area of law, the rulings have been diverse and confusing. But a few common themes are becoming apparent. Here  is the most relevant and recent case law on protecting privilege along with the specific advice from the courts on how to avoid a privilege disaster.

Make an Effort

That may be good advice for anything in life, but it is also a specific command the courts have repeatedly delivered in privilege-related matters. Too often, lawyers produce evidence in litigation and, when they find out privileged information was given to opposing counsel, they try to get it back, arguing that the production was an accident.

There is a simple, three part test to determine if a party waives privilege by accidentally producing to opposing counsel. Part one asks whether the production was truly an accident.  The second and third parts of the test ask whether or not your team took reasonable efforts to prevent that disclosure from happening and then took steps to fix the problem once identified. That means you have to demonstrate a concerted effort to protect privileged content but, for reasons out of your control, the data wound up in someone else’s hands. For example, the court in Pacific Coast Steel, Inc. v. Leany, No. 2:09-cv-12190-KJD-PAL, 2011 (D. Nev. Sept. 30, 2011) slapped down the plaintiff’s request to return privileged documents because he never made an effort to protect privilege.

The plaintiff in this employment matter tried to remove privileged documents from the evidence acquired by his former employer. However, the judge found that he had the opportunity to remove copies of his computer files, and did not make an effort to remove any of the confidential or privileged information, he “waived any privilege he may have had to privileged or confidential materials he left … by failing to take reasonable means to preserve the confidentiality of the privileged matter.”

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In theory, protecting your privileged attorney-client work product should be a straightforward and simple matter. In a new ruling out of Ohio, Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., (S.D. Ohio Aug. 28, 2012), all the defendants had to do was mark documents as confidential, and make sure not to produce them to opposing counsel. Instead, Medex, the producing party, sent about 7,500 documents to the plaintiffs and included 347 documents it had declared to be privileged.

Can't Un-Waive Privilege

 

WHOOPS. Unfortunately for them, once privileged documents are produced, it’s almost impossible to get them back. At a deposition, the plaintiffs introduced fourteen documents Medex argued should have been privileged. The defendant Medex panicked, arguing that the documents were “inadvertently produced, privileged communications” and had them sequestered during the deposition. They sought to claw them back, which in theory is a mechanism parties have agreed on to return privileged documents that are produced accidentally. However, in practice, the claw back provision is rarely enforced by the courts.

You Have to Earn Privilege

This case is a labor dispute in Ohio, whose privilege rules are the same as the federal standard. Privilege is an important protection, encouraging lawyers to communicate freely with clients. But since privilege narrows the amount of evidence that is discoverable, courts narrowly interpret the rules and put a heavy burden on the party invoking privilege, especially when they try to claim a document was accidentally produced.

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Lawyers Struggle with Protecting Privilege

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.

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