Transcript Document
Rule 502 And The EDiscovery Dilemma Keith Ainsworth, Esq. Evans, Feldman & Ainsworth, LLC 261 Bradley Street New Haven, CT 7/18/2015 1 What is Rule 502 and What Does it Do? 7/18/2015 Evidentiary Rule – allows for ESI (electronically stored information) to be used as evidence Sets standards for using the attorney-client privilege Resolves conflicts regarding the privilege 2 What is Rule 502 and What Else Does it Do? 7/18/2015 Hopes to reduce litigation costs Provides for confidentiality orders Presumption against waiver when privileged material is inadvertently disclosed Upholds party agreements – clawbacks and quick peeks 3 Why Was 502 Necessary? 7/18/2015 In Re: VIOXX PRODUCTS LIABILITY LITIGATION, 501 F.Supp.2d 789 (E.D.La. 2007) –ediscovery nightmare-- 500,000 documents subject to a privilege claim $ E-Discovery can be expensive 4 Attorney-Client Privilege 7/18/2015 Communications between lawyer and client are protected from disclosure or use in evidence Includes experts retained to assist the attorney and not for testimony at trial Communication must be for the purpose of legal assistance and not for general business (lawyer as lawyer vs. lawyer as corporate officer) 5 Rule 502(a) 7/18/2015 Disclosure Made In A Federal Proceeding Or To A Federal Office Or Agency. Scope Of A Waiver: FRE 502(a) limits waiver of the privilege normally to the communication or materials disclosed, and not to the entire subject matter of the communication. The scope of any waiver is confined to the information disclosed unless "fairness" requires further disclosure. 6 Rule 502(b) Inadvertent Disclosure: FRE 502(b) clarifies that inadvertent disclosure does not result in waiver when the holder of the privilege "took reasonable steps to prevent disclosure" and "promptly took reasonable steps to rectify the error." 7/18/2015 7 Rule 502(c) 7/18/2015 Disclosure Made In A State Proceeding: FRE 502(c) addresses circumstances where disclosure was first made in a state proceeding and is later considered in a federal proceeding. The provision applies the federal or state law that furnishes the greatest protection to the privilege and work product. 8 Rule 502(d) 7/18/2015 Controlling Effect Of A Court Order: FRE 502(d) recognizes that a federal court may enter a confidentiality order providing "that the privilege or protection is not waived by disclosure connected with the litigation pending before the court." 9 Rule 502(e) 7/18/2015 Controlling Effect Of A Party Agreement. FRE 502(e) allows parties to enter into an agreement to limit the effect of any disclosure. Agreements are binding on the parties ONLY if the agreement is part of (usually)the order following the parties’ 26(f) planning conference. 10 Zebulake Orders 7/18/2015 ZEBULAKE v. UBS WARBURG, LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003) “quick peek” or “clawback” agreements between counsel which typically reduce privilege review costs allow opposing counsel to look at all ESI choose the subset of desired documents fight over a sub-set of the truly relevant documents provides that privileged documents disclosed must be returned 11 502(f) 7/18/2015 Controlling Effect Of Rule 502. FRE 502(f) notes that the rule "applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings" and "even if State law provides the rule of decision." Possible 10th Amendment type Constitutional challenge 12 Strategies for Preserving the Privilege and Protecting ESI 7/18/2015 Rule 26(b)(2)(B) interjects a bit of rationality to the madness that is Ediscovery by providing A party need not provide discovery of ESI from sources that are not reasonably accessible because of undue burden or cost 13 Strategies for Preserving the Privilege and Protecting ESI 7/18/2015 Deal with ESI issues early in 26(f) Planning Report. Specify format of produced ESI. Separate communications with legal counsel on a unique system. Privilege chain of custody which tracks how ESI is reviewed for privilege. 14 Strategies for Preserving the Privilege and Protecting ESI 7/18/2015 Procedure for sequestering privileged ESI. QA/QC sampling to ensure privileged material is not disclosed. Use separate software and e-mail servers for in-house litigation department. Minimize propagation of e-mails and communications. 15