Transcript Ms. Haley's PowerPoint presentation. (1 MB

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
• My VCR still flashes “12:00” since I bought
it 10 years ago.
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 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
• 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?
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 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 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
General Metadata Fields
Common Metadata Fields
General Metadata Fields
Metadata
• Some real examples from court papers
filed by good law firms since 2005.
Who Ya Gonna Sue?
One Last Happy Thought
Why It Matters: Part 1
• Sender’s Duties
• Recipient'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
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 Duties
• 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
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 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
• Dishonest to look
• Notify of receipt
Ariz. Bar Op. 07-03
Florida Bar Op. 06-2
• Can’t look; Dishonest?
• Notify of receipt
Virginia? LEO 1702?
Dishonest to look
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 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?
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 edocuments may
contain embedded
data
– Privilege review
– Substantive review
• Other side’s e-documents
may contain it
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 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 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 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
• 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
• 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 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 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
• 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 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 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
•
•
•
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/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.
E-discovery and Qualcomm
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. 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. Broadcom
• While preparing Qualcomm witness Viji
Raveendran to testify at trial, attorney Adam Bier
discovered an August 6, 2002 email to
[email protected] 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. 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. 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. 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. 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. 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. Broadcom
• Magistrate Judge Major’s January 2008
order set off alarms in law firms and inhouse 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. 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. 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. 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
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
• 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
• 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 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 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 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 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 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 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 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
• 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?
• 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
• 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
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?
Study the FRCP!!
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
• 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
• 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
• 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
• 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)
• 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 (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 (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
• 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
• 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 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 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 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" postproduction notice of protection [called a
"clawback" procedure under Fed. R. Civ. P. 26(f)
Committee Note].
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 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 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
• 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)
• (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)
• 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. 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. 502
Alternatively:
Court found privilege waived where Plaintiff did not
pursue all reasonable 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(d)
• Before discovery starts it is important to
obtain a court order with “clawback”
provisions specifying realistic terms and
conditions for recovering inadvertentlyproduced documents
(pursuant to Rule 502(d))
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)
• 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).