E-Discovery Best Practices: Reducing Your Risk of Inadvertent Disclosure: Part 2

In Part 2 of this series on reducing the risk of inadvertent disclosure of privileged and confidential information, I’ll spotlight how Federal Rule of Evidence 502 seeks to minimize costs related to litigation, particularly with respect to electronic discovery.

FRE 502: Reasonableness Standard; Protective Orders

Federal Rule of Evidence 502 seeks to minimize costs related to litigation, particularly with respect to electronic discovery.¹ “The idea [behind FRE 502] was to speed up production and to include use of automated or semi-automated processes,” said Gareth Evans, partner at Gibson, Dunn & Crutcher, LLP, founder of the firm’s e-discovery group, and member of the Sedona Conference E-Discovery Working Group 1.

Subsection (b) provides that inadvertent disclosure of privileged information does not waive privilege if the holder of the privilege took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the disclosure. Assessment of reasonableness is a multifactor process, and includes examining the precautions taken; time taken to rectify the error; scope of discovery, including the number of documents involved and time for review; the extent of the disclosure; and issues of fairness.²

Subsection (d) provides that a federal court may enter a confidentiality order with respect to the release (inadvertent or otherwise) of privileged information in the case before it. The order binds parties and non-parties and applies in other federal and state court proceedings, except in instances of a separate disclosure of the same information in another federal or state court. Importantly, an agreement between the parties is binding only on the parties to the agreement unless it is incorporated into a 502(d) order.³

Achieving “Reasonableness” and Reducing Inadvertent Disclosure

As discussed above, federal practice rules provide mechanisms for protecting privileged and confidential information. Despite these protections, there is no way to ‘un-ring the bell’ of disclosure – the other party has seen privileged or confidential information. “The other side has information which will inform their litigation strategy greatly and that information could become public intentionally or unintentionally,” said Evans of Gibson Dunn. Therefore, avoiding inadvertent disclosure when possible may be preferable. Further, in the context of a FRE 502(b) evaluation, attorneys will need to have acted “reasonably.”

In my next column I will examine a few practices that are worth considering when structuring review and production processes, and can be useful for both meeting the “reasonableness” standard and potentially reducing the likelihood of inadvertent disclosure.

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. Fed. R. Evid. 502 advisory committee’s note, 2008.
2. Ibid. See also cases cited therein (Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105, S.D.N.Y. 1985, and Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 332, N.D. Cal. 1985). See also, Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 259, D. Md. 2008.
3. Fed. R. Evid. 502 advisory committee’s note, 2008.