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E-Discovery Best Practices: Reducing Your Risk of Inadvertent Disclosure: Part 1

Ken Neal
by Ken Neal
February 23, 2018
Document Management Strategies

This is my first post in a series that will examine how attorneys, their support staff and litigation teams, and outside vendors can protect against inadvertent disclosure of privileged and confidential information.

Attorneys are bound by ethics rules to protect client confidences, have competency with respect to changes in law and technology, and supervise junior attorneys and vendors.1 In addition, federal and state laws, international law, and specific contractual terms create obligations regarding the protection of privileged and confidential information.

These ethical and legal obligations are put to the test with the ever-increasing volume of electronically stored information (ESI) that is potentially subject to electronic discovery. Unfortunately, the volume of ESI makes it likely that, despite best efforts, inadvertent disclosures will occur.2 “I can virtually guarantee some privileged material will slip through,” said U.S. magistrate judge Andrew Peck.3

To address this likelihood, attorneys, their support staff and litigation teams, and outside vendors need to understand what they are protecting and why, as well as how to protect against inadvertent disclosures and minimize consequences when disclosure occurs.

The efficient and appropriate use of technology, when coupled with rules-based solutions, minimizes litigation costs and protects clients and the litigation from inadvertent disclosures and potential adverse effects.

Using Practice Rules to Protect Privileged and Confidential Information

The Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Evidence (FRE) provide options attorneys can use to manage the disclosure, whether inadvertent or not, of privileged and confidential information. In this context, “privilege” refers to the attorney-client privilege and work product. Confidential information, such as trade secrets or personal information subject to privacy and data protection laws,4 is not protected by rules dealing specifically with “privilege,” though other rules do provide protections.

FRCP 26: Clawback Procedures and Protective Orders

FRCP 26(b)(5)(B) outlines the procedure for asserting a claim of privilege after material has been produced in discovery. This subsection does not address waiver of the information contained in the production, but rather the process of “clawing back” privileged information. The subsection works in tandem with subsection (f), which requires parties to discuss privilege issues as part of their discovery plan. Any agreements of the parties can be included in court orders, such as an FRCP 26(c) protective order, FRCP 16 (b) scheduling order, or an FRE 502(d) order.5

Subsection (c) provides the court’s ability to enter a protective order, which can include requiring that trade secrets or other confidential information not be revealed, or be revealed only in a specified way.6

In Part 2 of this series, I’ll spotlight how Federal Rule of Evidence 502 seeks to minimize costs related to litigation, particularly with respect to electronic discovery. In the meantime, feel free to visit the Legal Services page of our website for additional information on industry trends and best practices including case histories, whitepapers and more.

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1. See, for example, ABA Model Rule 1.1, 1.6, 1.15, 5.1 and 5.3 and specific state specific rules. See also, Lisa M. Gonzalo, “Inadvertent Disclosure in E-Discovery: How to Avoid Waiver of Privilege, Section of Litigation,” American Bar Association, Nov. 3, 2015, http://apps.americanbar.org/litigation/committees/commercial/articles/fall2015-1115-inadvertent-disclosure-ediscovery-avoid-waiver-privilege.html.

2. Fed. R. Civ. P. 26 (b)(5) advisory committee’s note, 2006 Amendment.

3. Rhys Dipshan, “Federal Judges give 4 Ways to Survive E-Discovery Expectations,” Sep. 13, 2017, https://www.law.com/sites/almstaff/2017/09/13/federal-judges-give-4-ways-to-survive-e-discovery-expectations/.

4. The Sedona Conference Principles, Third Edition: “Best Practices, Recommendations & Principles for Addressing Electronic Document Production,” 19 Sedona Conf. J. 1, p. 151, forthcoming 2018. https://thesedonaconference.org/publication/The%20Sedona%20Principles.   

5. Ibid., pp. 162-63. See also, Fed. R. Civ. P. 26 (b)(5) advisory committee’s note, 2006 Amendment; The Sedona Conference: “Commentary on Protection of Privileged ESI,” Nov. 2014 at 9; and Lisa M Gonzalo, “Inadvertent Disclosure in E-Discovery: How to Avoid Waiver of Privilege,” Section of Litigation, American Bar Association, Nov. 3, 2015.

6. Fed. R. Civ. P 26 (c)(1)(g); Sedona Conference Best Practices, pp. 162-3.

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