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Ethical Hazards Posed by the Digital Age. Leslie A.T. Haley Sr. Asst. Ethics Counsel Virginia State Bar. Dangers of Technology. Attorneys make excuses for not learning good informational technology skills. . . . I’m a technophobe I’m technology challenged I’m techno-illiterate

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ethical hazards posed by the digital age
Ethical Hazards Posed by the Digital Age

Leslie A.T. Haley

Sr. Asst. Ethics Counsel

Virginia State Bar

dangers of technology
Dangers of Technology
  • Attorneys make excuses for not learning good informational technology skills. . . .
  • I’m a technophobe
  • I’m technology challenged
  • I’m techno-illiterate
  • My VCR still flashes “12:00” since I bought it 10 years ago.
dangers of technology3
Dangers of Technology
  • What courts are saying: No excuses. You owe duties of competence and diligence.
  • You need to learn your client’s IT architecture as soon as possible.
  • Litigation holds
  • Duty to verify and monitor the hold
  • Duty to hire and consult with experts if you do not understand
  • Duty to scrub metadata
  • Duties re inadvertently transmitted info
dangers of technology4
Dangers of Technology
  • Duty to “Google:” Munster v. Groce, (Ind. App. 2005) (lawyer failed to use due diligence to obtain personal service on defendant; could have determined whereabouts using Google).
  • Duty to check MySpace, FaceBook, AdultFriendFinder and other online social networks.
scope of presentation
Scope of Presentation

    • Duty to scrub electronic documents for metadata; duty of attorney to mine or not mine opponent’s electronic documents for metadata    • Lawyer’s use of information or data obtained by client in violation of ECPA or other computer trespass laws    • Electronic file retention, storage, destruction, and delivery to client    • Ethical issues arising out of e-discovery: Qualcomm, Inc. v. Broadcom Corp.    • Unintended relationships: “Are you my lawyer?” Ethical duties owed to persons who communicate via lawyer’s website or Internet mail    • What should a lawyer do when an opponent mistakenly transmits electronic documents that contain privileged information?

what is metadata
What is Metadata?
  • Metadata, by its nature, is a secondary class of data. Although commonly described as “data about data,” a more formal definition has been given as “evidence, typically stored electronically, that describes the characteristics, origins, usage and validity of other electronic evidence.”
what is metadata8
What is Metadata?
  • Substantive metadata is the notorious version of metadata, which is responsible for some of the horror stories involving electronic documents. In one case, the Pentagon had posted a report online detailing an incident in which a U.S. soldier accidentally killed an Italian secret service agent in Iraq. Readers were able to access redacted, blacked-out information in the .PDF file by copying and pasting the confidential information into a Word document.
what is metadata9
What is Metadata?
  • An adverse party was able to access a previous version of a document and learned that a suit by the SCO Group against DaimlerChrysler was originally intended for the Bank of America.
  • J. Brian Beckham, Production, Preservation and Disclosure of Metadata, 7 COLUM. SCI. & TECH. L. REV. 1, 2 (2006).
what it can disclose
Amount of time spent with document open

Original authors and editors

Creation, access, modification dates

Undo changes to reveal original document and/or changes made to it

What It Can Disclose
metadata14
Metadata
  • Some real examples from court papers filed by good law firms since 2005.
sender s duties
Sender’s Duties
  • RPC 1.6: Protect client confidential information
  • RPC 1.1: Provide competent representation
every day reducing metadata
Microsoft Word

Microsoft has patches

Word Perfect

Patches available

Commercial software “scrubbers”

WorkShare

iScrub

Others – ask/Google

Adobe Acrobat PDF

Some metadata persists except in Acrobat 8 Professional

Paper

Every Day: Reducing Metadata
recipient s duties

Recipient’s Duties

Is it unethical to look for metadata that might contain privileged or confidential information?

If so, can’t look.

RPC 8.4:Misconduct to engage in conduct involving “dishonesty, fraud, deceit or misrepresentation.”

recipient s duties22
Is transmission of metadata in a file like inadvertently faxing a privileged document?

If so, then rules and cases that

require notifying the sender

could apply

Recipient’s Duties
recipient s duties23
Recipient’s Duties

ABA Model RPC 4.4(b): “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”

recipient s duties24
Recipient’s Duties
  • VA LEO 1702: Following ABA LEO 368, the Bar concludes that a lawyer receiving "inadvertently transmitted confidential documents from opposing counsel or opposing counsel's client" must return the documents. Although prohibiting a lawyer from reading an inadvertently transmitted document based on "boilerplate" notices on fax cover pages would "violate reality," once the lawyer recognizes a document as confidential, the lawyer "has an ethical duty to notify opposing counsel, to honor opposing counsel's instructions about disposition of the document, and not to use the document in contravention of opposing counsel's instructions."
can you look must you notify
Looking prohibited; notice required:

NYSBA Op. 749 Ariz. Bar Op. 07-03

Dishonest to look Dishonest to look

Notify of receipt Notify of receipt

Florida Bar Op. 06-2Virginia? LEO 1702?

Can’t look; Dishonest?

Notify of receipt D.C.?

Alabama State Bar Opinion Number: 2007-02

Dishonest to look

Notify of receipt

Can You Look? Must You Notify?
can you look must you notify26
Can You Look? Must You Notify?

Can look:

ABA Op. 06-442

  • Can view and use
  • Notification not decided

Maryland Op. 2007-09

  • Can view and use
  • No notification required

Colo. Bar Op. 119 (2008)

  • Can view and use
  • No notification required
what does this mean
What Does This Mean?

Can you look?

Where do you practice?

Must you notify?

Where do you practice?

- Do ethics rules include Rule 4.4(b)?

- Does it apply?

- What does it say?

- Any case law?

why it matters part 2
Outgoing e-documents may contain embedded data

Privilege review

Substantive review

Other side’s e-documents may contain it

Why it Matters (Part 2)
why it matters part 229
Why it Matters (Part 2)
  • Rule 3.4 (a): A lawyer shall not obstruct another party's access to evidence or alter, destroy or conceal a document or other material having potential evidentiary value for the purpose of obstructing a party's access to evidence. A lawyer shall not counsel or assist another person to do any such act.
why it matters part 230
Why it Matters (Part 2)
  • Rule 3.4 (e): a lawyer shall not “. . . fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”
why it matters part 231
Why It Matters (Part 2)
  • Metadata is not explicitly addressed in the Federal Rules of Civil Procedure. The word “metadata” does not appear at all in the Rules, and appears only once in the Advisory Committee Comments to the Rules. However, despite efforts to the contrary, metadata is clearly included within the definition of “electronically stored information (ESI)” contained in Rule 34.
why it matters part 232
Why it Matters, Part 2
  • The December 2006 Amendments to the Federal Rules added new provisions relating to the production of electronically stored information. Rule 34(b) allows the requestor to “specify the form or forms in which electronically stored information is to be produced.” Therefore, if the information contains metadata, the requesting party can specify that metadata be produced along with the primary data. The producing party in its “response may state an objection to the requested form for producing electronically stored information.” If it objects to the requested form, the producing party must also “state the form or forms it intends to use.”
using digital information obtained unlawfully
Using Digital InformationObtained Unlawfully
  • RULE 4.4 Respect For Rights Of Third Persons
  • In representing a client, a lawyer shall not use means that have no purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (emphasis added)
unlawfully obtained information
Unlawfully Obtained Information
  • Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons.
unlawfully obtained information35
Unlawfully Obtained Information
  • A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. Va. Rule 1.2 (c).
unlawfully obtained information36
Unlawfully Obtained Information
  • VA LEO 1786 (2004): Whether [the lawyer] can use the information will depend on the nature of the documents, the nature of the source of the information, the method used by the client to gather the information, and finally, whether the attorney directed the client to do so. The limited facts provided prevent the committee from opining on the issue other than to reiterate that the attorney can only use such information if doing so would not violate Rule 3.4(a) and Rule 4.4 The committee notes that Rule 8.4(a) precludes an attorney from violating the Rules of Professional Conduct “through the acts of another.” Thus, the attorney should not direct the client to obtain evidence via a method the attorney himself is ethically prohibited from using.
electronic files
Electronic Files
  • May a lawyer require, as a condition of the representation, that the client’s file be kept in electronic format?
  • Yes, so long as the client's interests are not prejudiced by such a condition for representation. Va. LEO 1818.
electronic files38
Electronic Files
  • In determining what to destroy or retain in the client's file, the attorney should be mindful of the committee's recommendations in LEO 1305 that before destroying a client's paper file the lawyer should review that file to make sure that any documents that may be of continued use or benefit to the client only if they are maintained in paper form not destroyed. In deciding whether to destroy a paper document that was provided by the client to the lawyer, for example, the lawyer should consult with the client and obtain consent to destroy it, after it has been converted to an electronic document.
electronic files39
Electronic Files
  • Are e-mails and other electronic documents part of the “client’s file?”
  • Yes. A lawyer's clients have a presumptive right of full access to e-mails and other electronic documents in the lawyer's possession, but clients who request copies of those documents generally may be charged a reasonable fee for gathering and producing them. New York City Bar Ass'n Comm. on Professional and Judicial Ethics, Formal Op. 2008-1(July 2008).
file retention destruction
File Retention/Destruction
  • Applicable Rules of Conduct:
  • Rule 1.4–Duty to inform/notify client regarding destruction of file or client property
  • Rule 1.6–Duty to protect client confidences and secrets while storing or disposing of client files or property.
file retention destruction41
File Retention/Destruction

Other Considerations in Determining When to Destroy a Client’s File:

  • documents can now be imaged and stored electronically
  • statutes of limitations regarding claims by minors or other incapacitated clients and governmental entities.
  • contact professional liability insurer for guidance on file retention.
  • Keep detailed index of destroyed files.
qualcomm v broadcom
Qualcomm v. Broadcom
  • The Qualcomm case, tried in federal court in San Diego, involved allegations by Qualcomm that rival Broadcom infringed certain Qualcomm patents involving the coding of video files. Part of Broadcom’s response was a claim that the patents are unenforceable or waived because they improperly cover industry standards set by a body known as the JVT in a process in which Qualcomm participated.
qualcomm v broadcom44
Qualcomm v. Broadcom
  • Throughout discovery, pre-trial summary judgment motions, and at trial, Qualcomm disputed Broadcom’s argument. Qualcomm claimed that it did not participate in the JVT’s standards-setting activities until after May 2003, the month when the JVT issued the relevant video coding standard. But, at trial, a Qualcomm witness admitted that during his pre-trial preparation, 21 emails were pulled from his computer concerning Qualcomm’s JVT participation, and these were not produced in the litigation.
qualcomm v broadcom45
Qualcomm v. Broadcom
  • While preparing Qualcomm witness Viji Raveendran to testify at trial, attorney Adam Bier discovered an August 6, 2002 email to viji@qualcomm.com welcoming her to the avc_ce mailing list. Several days later, on January 14, 2007, Bier and Raveendran searched her laptop computer using the search term “avc_ce” and discovered 21 separate emails, none of which Qualcomm had produced in discovery. The email chains bore several dates in November 2002 and the authors discussed various issues relating to the H.264 standard.
qualcomm v broadcom46
Qualcomm v. Broadcom

The Qualcomm trial team decided not to

produce these newly discovered emails

to Broadcom, claiming they were not

responsive to Broadcom’s discovery

requests.

qualcomm v broadcom47
Qualcomm v. Broadcom
  • This evidence led to the disclosure, four months after the trial, that Qualcomm had withheld as many as 46,000 documents, many of them emails, totaling more than 200,000 pages. These documents indicated that Qualcomm indeed had participated in the JVT standards-setting process as early as 2002.
qualcomm v broadcom48
Qualcomm v. Broadcom
  • At the conclusion of the trial, Judge Brewster further found that Qualcomm’s “counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial, and post-trial before new counsel took over lead role in the case on April 27, 2007.” He referred Broadcom’s Motion for Sanctions to Magistrate Judge Barbara Major.
qualcomm v broadcom49
Qualcomm v. Broadcom
  • Magistrate Judge Barbara L. Major held that both Qualcomm and six of its attorneys committed misconduct, in failing to conduct an e-mail search on obvious custodians on obvious terms on an issue that was obviously central to the case.
qualcomm v broadcom50
Qualcomm v. Broadcom
  • She ordered Qualcomm to pay over $8.5 million for Broadcom’s attorneys’ fees and other litigation costs (less costs ordered to be paid earlier), referred six lawyers on Qualcomm’s litigation team to the State Bar of California for investigation.
qualcomm v broadcom51
Qualcomm v. Broadcom
  • Magistrate Judge Major’s January 2008 order set off alarms in law firms and in-house legal departments across the country. Her opinion indicated that a negligent failure to comply with discovery could lead to more than losing a case and paying the other side’s fees. Noncompliant attorneys now also run the risk of a state disciplinary referral.
qualcomm v broadcom52
Qualcomm v. Broadcom
  • Federal Rule of Civil Procedure 26(g)(2), under which attorneys certify that to the best of their knowledge, information and belief, “formed after a reasonable inquiry” (a phrase that the magistrate put in bold), the discovery response is “consistent with the rules and law, not interposed for an improper purpose, and not unreasonable or unduly burdensome or expensive.”
  • a trial court may impose sanctions proportionate with the harm caused by the discovery violation, and the court has inherent supervisory power over discovery.
qualcomm v broadcom53
Qualcomm v. Broadcom
  • The attorneys appealed the sanctions to U.S. District Judge Rudi Brewster, who presided over the patent infringement lawsuit in San Diego federal court.
  • Judge Brewster vacated Major's sanctions against the six outside lawyers and ruled that Qualcomm's attorney-client privilege should not stop them from defending themselves in an appeal.
qualcomm v broadcom54
Qualcomm v. Broadcom
  • Brewster said the six lawyers identified as Batchelder, Bier, Leung, Mammen, Patch and Young, could exercise a "self-defense exception" to the attorney-client privilege previously asserted by Qualcomm in a sanctions hearing.
  • Brewster sent the case back to Major for a rehearing on the lawyer sanctions, but shielded Qualcomm and its employees from exposure to further punishment in the discovery violations.
e discovery and ethics
E-discovery and Ethics

What are the ethics issues:

  • Duty to make reasonably diligent effort to respond to lawful discovery request - Rule 3.4 (e)
  • Duty to follow standing rules of tribunal - i.e. discovery rules - Rule 3.4 (d)
  • Duty not to obstruct opposing party’s access to evidence - Rule 3.4 (a)
  • Duty to not make false statements of law or fact - Rule 4.1
  • Duty to protect privileged and confidential information - Rule 1.6
e discovery and esi
E-discovery and ESI
  • The obligation of any litigant (or possible litigant) to preserve potentially responsive evidence obviously does not present a new issue ‑‑ but the enormous volume of electronic communications clearly makes the analysis more difficult, and exacerbates the possible burden.
preservation of esi
Preservation of ESI
  • It should go without saying that litigants must preserve potentially responsive documents (including electronic documents). The duty obviously arises before a discovery request arrives ‑‑ and can also arise before litigation begins.
preservation of esi58
Preservation of ESI
  • [t]he obligation to preserve evidence arises . . . when a party should have known that the evidence may be relevant to future litigation.

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003).

  • The court found that officials at UBS Warburg were on notice that the plaintiff might sue the company for gender discrimination ‑‑ thus triggering the preservation duty.
preservation of esi59
Preservation of ESI
  • Must a corporation, upon recognizing the threat of litigation, preserve every shred of paper, every e‑mail or electronic document, and every backup tape?
  • The answer is clearly, "no." Such a rule would cripple large corporations, like UBS, that are almost always involved in litigation. As a general rule, then, a party need not preserve all backup tapes even when it reasonably anticipates litigation. Zubulake, supra at 217.
preservation of esi60
Preservation of ESI
  • The Zubulake court found that UBS should have preserved electronic documents that were ultimately destroyed. It ordered UBS Warburg to pay the cost of the plaintiff's motion, directed the company to reimburse plaintiff for the costs of any depositions or re‑depositions necessitated by the document destruction, and approved a jury instruction containing an adverse inference about the destroyed back‑up tapes.
preservation of esi61
Preservation of ESI
  • E*Trade Sec. LLC v. Deutsche Bank AG, Civ. Nos. 02-3711 & -3682 RHK/AJB, 2005 U.S. Dist. LEXIS 3021, at *14 (D. Minn. Feb. 17, 2005)

(assessing a spoliation claim against Deutsche Bank; a litigant asserting a spoliation claim must show bad faith if its adversary destroyed documents before the appropriate "trigger date," but need not show bad faith if documents are destroyed after that date; defining the "trigger date" as the date "when a party knows or should have known that the evidence is relevant to future or current litigation").

preservation of esi62
Preservation of ESI
  • Broccoli v. Echostar Commc’ns Corp., 229 F.R.D. 506, 512, 510-11 (D. Md. 2005)

(holding that a company had engaged in spoliation, and approving “an adverse spoliation of evidence instruction in the jury instructions.”)

preservation of esi63
Preservation of ESI
  • A court ordered Philip Morris to pay $2.75 million as a sanction for not preserving relevant e-mails, and also prohibited Philip Morris from relying on the testimony of any of its executives who had not saved their e‑mails.

United States v. Phillip Morris USA Inc., 327 F. Supp. 2d 21 (D.D.C. 2004).

preservation of esi64
Preservation of ESI
  • Morgan Stanley lost a highly publicized Florida state court case involving allegations of document spoliation. The verdict against Morgan Stanley was approximately $1.5 billion.

The New York Times (5/19/05) "Jury Tallies Morgan’s Total at $1.45 Billion."

victor stanley v creative pipe
Victor Stanley v. Creative Pipe
  • A lesson on how to lose the privilege
  • May 29, 2008
  • U.S. District Court, MD
  • Federal Magistrate Judge Paul W. Grimm
  • Defendants inadvertently produced 165 privileged documents
  • Judge Grimm ruled that the privilege had been lost.
what did the defendants do to deserve this
What did the Defendants Do to Deserve This?
  • Defendants blamed the volume of production and lengthy review process.
  • Grimm pierced the ACP b/c 165 docs not just 1 or 2.
  • Defs asked for a “claw back” agreement, but then w/d request, stating they could do a full review.
  • Pls easily discovered the docs, segregated the privileged materials and notified defense counsel. Could have been done in one hour using desktop search tool!
  • Should have been easy to find and segregate privileged material.
fed r civ p rule 16
Fed. R. Civ. P. Rule 16
  • Need to address electronic data discovery (EDD) in scheduling order, including any agreement reached re inadvertently produced material that is privileged.
  • Prepare client to deal with ESI at the outset.
  • Judges are recommending separate claw back agreement b/c Rule 26’s claw back provision d/n address substantive law.
  • You should have an EDD expert
slide68
EDD
  • Meet and confer with counsel re production and preservation issues.
  • Active Date only?
  • What format? Native? .PDF? .TIFF?
  • What ESI needs preservation?
  • What is the timeline for production?
  • Costs?
in re seroquel product liability litigation
In re Seroquel Product Liability Litigation
  • 1/26/2007, M.D., Fla.
  • Good Case Management Order
  • TIFF with load files specified
  • Specifies Metadata fields to be produced
  • Specifies IT people to be made available if questions arise
  • Walks through many of the new federal rules.
inadvertent production factors to consider
Inadvertent Production—Factors to Consider
  • Reasonable precautions taken to prevent inadvertent disclosure?
  • Number of documents disclosed?
  • Extent of the disclosure?
  • Delay in taking action to rectify disclosure?
  • Overriding interests of justice?
misdirected communications
Misdirected Communications
  • Compare duty of receiving lawyer under ABA MR 4.4 (b) with duties under VA LEO 1702.
  • ABA—only duty is to notify sender
  • VA—don’t read; don’t use, notify sender & abide by sender’s instructions
  • Still leaves open substantive issue whether privilege is waived
  • Parties may agree to “Clawback” Policy which may or may not address waiver issue. See Fed. R. Civ. P. 26 and proposed Fed. R. Evid. 502.
the original aba position
The original ABA position
  • In 1992, the ABA issued a surprisingly strong opinion directing lawyers to return obviously privileged or confidential documents inadvertently sent to them outside the document production context. In ABA Formal Op. 92-368 (11/10/92), the ABA indicated that as a matter of ethical conduct contemplated by the precepts underlying the Model Rules, (a) [the lawyer] should not examine the [privileged] materials once the inadvertence is discovered, (b) should notify the sending lawyer of their receipt and (c) should abide by the sending lawyer's instructions as to their disposition.
the current aba position
The Current ABA Position
  • However, the ABA has retreated from this position. As a result of the Ethics 2000 Task Force Recommendations, ABA Model Rule 4.4(b) now indicates that "[a] lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender" (emphasis added).
aba mr 4 4 b
ABA MR 4.4 (b)
  • Comment [2] to this Rule reveals that in its current form the ABA's approach is both broader and narrower than the ABA had earlier announced in its Legal Ethics Opinions.
  • ABA Model Rule 4.4 is broader because it applies to documents "that were mistakenly sent or produced by opposing parties or their lawyers" (emphasis added), thus clearly covering document productions. ABA Model Rule 4.4 cmt. [2].
aba mr 4 4 b76
ABA MR 4.4 (b)
  • The Rule is narrower than the earlier Legal Ethics Opinion because it explains that:
  • If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. ABA Model Rule 4.4 cmt. [2] (emphasis added).
aba mr 4 4 b77
ABA MR 4.4 (b)
  • In its new form, the ABA approach defers to case law on the issue of whether a lawyer must return such documents, but provides a professional "safe harbor" for those who do.
  • Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Although a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. Id., cmt. [3].
the va position
The Va. Position
  • LEO 1702 relies in part on ABA Formal Opinions 92-368 and 94-382.  Since issuing those opinions, the ABA has revised Model Rule 4.4 to include express language requiring only notice to the other attorney when the attorney/client materials are inadvertently transmitted. 
  • Virginia has not made a corresponding change to its Rules of Professional Conduct; the analysis in LEO 1702 remains the pertinent authority on this issue in Virginia.  Va. LEO 1786 (2004) at n.7
the federal rules
The Federal Rules
  • Fed. R. Civ. P. 26(b)(5)(B) requires a party receiving privileged or work product documents claimed to have been inadvertently produced by the other side to hold those documents until a court analyzes the situation.
the federal rules80
The Federal Rules
  • But Rule 26 provides little comfort to litigants on the waiver issue
  • In Hopson v. Mayor & City Council of Baltimore, Civ. A. No. AMD-04-3842, 2005 U.S. Dist. LEXIS 29882 (D. Md. Nov. 22, 2005), a magistrate judge correctly noted that the new federal rule simply describes a process - leaving any waiver issue up to a reviewing court. Because some courts take an unforgiving view of any inadvertent production of privileged documents, litigants in those courts will still lose their protection.
the federal rules81
The Federal Rules
  • This rule does not address whether the production has waived any protection. Fed. R. Civ. P. 26(b)(5) Committee Note.Any agreements reached under Fed. R. Civ. P. 26(f)(4) and any orders entered under Fed. R. Civ. P. 16(b)(6) "may be considered when a court determines whether a waiver has occurred."
the federal rules82
The Federal Rules
  • Fed. R. Civ. P. 16(b)(6) indicates that a scheduling order may include agreements among the litigants for post-production claims of privilege or work product protection.
  • The litigants may agree to the "initial provision of requested materials" without a waiver [called a "quick peek" procedure under Fed. R. Civ. P. 26(f) Committee Note] or a requirement that the receiving party return inadvertently produced protected materials upon a "timely" post-production notice of protection [called a "clawback" procedure under Fed. R. Civ. P. 26(f) Committee Note].
the federal rules83
The Federal Rules
  • Under new Fed. R. Civ. P. 26(f), litigants should meet and confer about such items as a post‑production privilege or work product claim, and whether to include such an agreement in a court order.

Fed. R. Civ. P. 26(f)(4).

the federal rules84
The Federal Rules
  • The Committee notes that litigants often spend large amounts of money reviewing documents for privilege, and that mistakes can result in an argument that there has been a subject matter waiver. These problems become "more acute" with electronic discovery, including metadata. Fed. R. Civ. P. 26(f) Committee Note.The parties can agree to protocols that include "quick peek" and "clawback" provisions.
the federal rules85
The Federal Rules
  • In "most circumstances," a party receiving protected "information" under such arrangements cannot claim a waiver. Such voluntary arrangements can be incorporated into a case management order under Fed. R. Civ. P 16(b). If the parties agree to entry of such an order, they should report it to the court in Form 35.
fed r evid 502
Fed. R. Evid. 502
  • Enacted with the goal to establish a uniform rule for handling inadvertent disclosures and of protecting parties from startling costs of e-discovery.
  • Intent is to protect parties from losing privilege or work-product protection because of reasonable measures taken to contain the cost of electronic discovery.
  • Enacted September 19, 2008
fed r evid 502 b
Fed. R. Evid. 502(b)
  • (b) Inadvertent disclosure.--When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Fed.R.Civ.P. 26(b)(5)(B).

fed r evid 502 d
Fed. R. Evid. 502(d)
  • Federal Court may order that the privilege or protection is not waived by disclosure connected with the pending litigation
  • In such event the disclosure is also not a waiver in any other Federal or State proceeding
fed r evid 50289
Fed. R. Evid. 502
  • Court found no waiver where “interests of justice” prevails to protect 800 privileged documents produced inadvertently with 78,000 docs.

(Rhoads Industries, Inc. v. Building Materials Corp; 254 F.R.D. 216 (E.D. Pa. 2008))

  • Court found no waiver – plaintiffs took reasonable steps to rectify error; speed and effectiveness of response; plaintiff denied final review of docs; objection immediately lodged with opposing counsel and court.

(Laethem Equipment Co. v. Deere & Co.; 2008 BL 290231 (E.D. Mich. 2008))

fed r evid 50290
Fed. R. Evid. 502

Alternatively:

Court found privilege waived where Plaintiff did not pursue allreasonable means of preserving the confidentiality of docs produced.

(ReliOn, Inc. v. Hydra Fuel Cell Corp., 2008 BL 270238 (D. Or. 2008))

Court found no privilege for doc where Plaintiff failed to meet its burden to show reasonable steps were taken to prevent the disclosure.

(Conceptus, Inc. v. Hologic, Inc., No. C 09-02280 (N.D. Ca. 2010))

fed r evid 502 d91
Fed. R. Evid. 502(d)
  • Before discovery starts it is important to obtain a court order with “clawback” provisions specifying realistic terms and conditions for recovering inadvertently-produced documents

(pursuant to Rule 502(d))

fed r evid 50292
Fed. R. Evid. 502
  • Parties stipulated to court’s entry of a protective order governing inadvertent disclosures.
  • Court did not engage in same balancing exercise as other cases; but did refer to the intent of Rule 502 and agreed that remedial actions of Plaintiff were sufficiently “prompt.”

(Alcon Manufacturing, Ltd. V. Apotex, Inc., No. 06-cv-01642 (S.D. Ind. 2008).

fed r evid 502 e
Fed. R. Evid. 502(e)
  • A non-waiver agreement among the parties does not bind non‑parties unless it is incorporated into a court order. Federal Rule of Evidence 502(e).
  • The Committee Note cites Hopson v. City of Baltimore, 232 F.R.D. 228 (D. Md., 2005).