In many lawsuits, high eDiscovery costs and limited internal resources are extremely prohibitive. Sophisticated computer systems and talented legal teams are necessary to properly conduct expensive document review, especially in combing for privileged documents – both attorney-client communications and those governed by the attorney work product doctrine.
The potential waiver of these privileges is one of the most troubling aspects of the discovery process for most litigants. In an ideal world, attorneys who are well-versed in the case would be able to ensure that each privileged communication is excluded from production; unfortunately, this may not be feasible given cost and time constraints. Even with the most sophisticated review workflows, there is still a chance that some privileged material will be inadvertently produced, often because of human error.
Best Practices to Protect Your Client with Federal Rule of Evidence 502
It is important to seek and carefully draft a 502(d) order or 502(e) agreement.
Currently, there is no widely recognized reason not to have an order. Although it is equally risky to depend heavily on the protections of a 502(d) order and relax privilege review, having the order is a “fail safe” that could mean the difference between accidental waiver and the ability to claw back an inadvertently produced document. A thoroughly drawn 502(d) order should disclaim the application of section 502(b) and identify the order as the sole vehicle under which privilege should be evaluated by stating that “any production of a privileged document is inadvertent.” With a thorough order in place, parties can then choose whether or not to decrease the review of a large electronic production by affording themselves the right to produce a privileged document with the absolute right to claw it back.
Litigators should still undertake a thorough privilege review of documents that are likely to contain substantive communications between an attorney and his client.
Further, there should always be a limit on the “reasonable time” in which to claw back a document. If a limit is not indicated, a party could fully intend to use a document that was produced and begin planning depositions and interrogatories accordingly; if the producing party has the ability to later assert a privilege claim, it could seriously impair the receiving party’s ability to craft a litigation strategy.
A prudent attorney must always keep the ethical obligations to his client in mind.
As a general matter, lawyers should ensure that their clients are fully informed about the risks and advantages of any review methodology other than a standard document-by-document privilege review. In operating under a 502(d) order, an attorney must gain the client’s informed consent for any decisions. Depending on the nature of the litigation in question, producing privileged documents could be against the client’s wishes; for example, in a matter that the client wants to keep confidential. As previously discussed, counsel must obtain the client’s informed consent for any and all decisions related to producing privileged information.
It’s important to document all of the client’s permission and opinions in writing.
This best practice will effectively minimize the impact of any conflicts, and can help to prevent disagreements over why one particular method of production was selected over another. It will also insure against any possibility that the attorney may forget key details disclaiming or elaborating on the client’s informed consent. Additionally, even after getting the client’s express permission, counsel should remain aware that their clients may not be comfortable with disclosing privileged documents pursuant to every production request. They should continually seek client approval for production requests throughout the discovery process.
It’s essential for an attorney to proceed with caution in dealing with these sensitive matters.
Litigators should still undertake a thorough privilege review of documents that are likely to contain substantive communications between an attorney and his client. This can be done fairly easily by using basic analytical tools like email threading and keyword searching.
Conclusion
It is somewhat uncertain whether Rule 502 will materially affect the costs of privilege reviews, but it is significant legislation nonetheless. The Rule codifies the law on waiver of attorney-client privilege and work product protection and encourages parties to cooperate by using non-waiver agreements. Even skeptics agree that when used properly, the Rule helps to facilitate a smoother discovery process and diminishes the risk of waiver not only in pending litigation, but also subsequent state and federal cases.
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