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Posts Tagged ‘privilege’

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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