eDiscovery costs are all the rage (or perhaps the source of rage), but we all know that attorney review for privilege and responsiveness costs between seven and ten times the eDiscovery technology costs. To help keep down costs of review, litigators and eDiscovery professionals do their best to collect and cull responsibly and defensibly and to employ technology assisted review.
But what if the risk of producing privileged documents was reduced almost to nothing? Could the review for privilege be less expensive?
A recent CALSM event panel gave attenders a look at Federal Rules of Evidence 502 and the use of clawback agreements and court orders regarding reducing the risk of producing privileged documents. Reliance on the required showing of diligence and proper procedure can be risky, and the outcomes can be uncertain. Parties can avail themselves with agreements to control waiver of privilege, but parties in adverse litigation are not good at letting each other off the hook; they often set unnecessary conditions on each other to get privileged documents returned.
But courts can do it on their own! FRE 502(d) says “Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.”
FRE 502(d) Orders and Opinions
Judge Paul W. Grimm (D. Md.)
United States District Judge Paul W. Grimm (D. Md.) has as part of his court’s standing order: “In accordance with Fed. R. Evid. 502(d), …. the disclosure of attorney–client privileged or work product protected information pursuant to a non-waiver agreement entered into under Fed. R. Evid. 502(e) does not constitute a waiver in this proceeding, or in any other federal or state proceeding.” (Other parts of this standing order are worth reading, copying, even memorizing, as, in the words of one wordy blogger, “this new discovery order is now an eDiscovery best practice.”)
Seventh Circuit Pilot Project
The Seventh Circuit Pilot Project has as a part of its proposed standing discovery order the following language “Principle 2.01 (Duty to Meet and Confer on Discovery and to Identify Disputes for Early Resolution) (a) Prior to the initial status conference with the Court, counsel shall meet and discuss the application of the discovery process set forth in the Federal Rules of Civil Procedure and these Principles to their specific case. Among the issues to be discussed are:…(5) the potential need for a protective order and any procedures to which the parties might agree for handling inadvertent production of privileged information and other privilege waiver issues pursuant to Rule 502(d) or (e) of the Federal Rules of Evidence.”
Judge Andrew J. Peck
United States Magistrate Judge Andrew J. Peck (S.D.N.Y) has in his court’s form for Rule 16 order the following: “The parties have discussed a 502(d) Order. Yes__ ; No__; The provisions of any such proposed Order shall be set forth in a separate document and presented to the Court for its consideration.” (Who would want to check “No” and then turn in that paper to Judge Peck?)
Judge Frank Maas
In the same district, United States Magistrate Judge Frank Maas said that at his urging, the parties had entered into a 502(d) stipulation, and because of that, the producing party has the right to claw back the privileged documents “no matter what”. NO MATTER WHAT???!!! There are very few things in life that are “no matter what”. Particularly in the law, we have found, it almost always “depends”. Almost any case has inadvertently produced documents, and the big ones almost always have inadvertently produced privilege. If you have the opportunity to get back your privileged documents NO MATTER WHAT, why wouldn’t you do it? Other panelists have referred to FRE 502(d) as the law’s only real “Get Out Of Jail Free” card.
Those of us in attendance at the CALSM meeting resolved that when asked for production protocols and specifications to deliver to our legal teams in advance of meet-and-confer, we plan as well to offer up the language of FRE 502(d).
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