privileged docs
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Privileged Documents
Had Em, Lost Em Get Em Back
May 4, 2007
Denyse L. Jones and Kelly W. King
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The jury is instructed to ignore the law, justice,logic and common sense and consider only the
harmful, random memos buried among the
defendants records.
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Privileged Documents
Had Em, Lost Em Get Em Back1. How privileged materials get outthere.2. How to protect what you kept.3. How to retrieve what slipped
through4. How to prevent slips in the future.
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FEMA
Field rep: Situation is past critical thousands gathering in the streets with nofood and waterdying patients being
medivacdwe are running out of food andwater at the dome...critical need
everywhere...
Ron Brown: thanks for the update. Anythingspecific I need to do or tweak?
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ENRON
EnronEmail.com: 515,000messages- Vendor search tool toy- 28% unrelated to business- so you were looking for a one- night stand, after all?
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Em ai l about Em ai l :
Securities case: Shut upand destroy this email
ENRON: Today is not good.
Too many documents toshred. Tomorrow is better.
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The B ig Pic t ure What is ESI?
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The Big Pic t ure - Volum e/Cost
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Metada ta
Jfka;jiosjoijdjkafjdkfjicvjvdjmfkahdio;jvjmdklfjd
kjkajkvjk;jdia;fjakdnfkajkgjmkaljg = When created By whom Sent to whom and when
What edits made
When might it matter: Contract dispute Trade Secrets/Non-compete Retaliation case
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Pr inc ipa l Form s of Produc t ion
for ESI
Hard Copies paper documents Images (e.g., .tif, .pdf*) *with or without textlayer Data exported to databases, text files, or loadfiles
(e.g., .csv
files, .txt files)
Native format data viewed in the applicationin which file was created Hosted data controlled-access website
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There is absolutely no basis for plaintiff
to argue for judgment as a matter oflaw and this Court should summarily
deny the motion and direct the partiesto proceed to trial.
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There is absolutely no basis [Bob: as youknow, the Angle
case arguably provides a
basis for Ps position, but they didnt citeit. I know you think its distinguishable,
but can we really say absolutely nobasis?] for plaintiff to argue for judgmentas a matter of law and this Court shouldsummarily deny the motion and direct theparties to proceed to trial.
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Exce l
Remember that this
is that totally bogus
number you and Icame up with at our
meeting with Jack.
$105.23 $15.23 $10,358.23
$423.16 $25.39 $85,943.56$528.39 $96,301.79
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Priv i lege Review
Develop Fi l t e r Term s
Project word list or dictionary StatisticsIssues:
Names Wildcards
Email Addresses Bi-directional Pairs
PhrasesKey Advice:Document the filter list and method.
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The rea l i t y
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The rea l i t y
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The rea l i t y
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Priv i lege Logs
A "housekeeping" item
Voluminous
delegated to low-cost labor
Complacency: it's clearly privileged
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Priv i lege Logs
Frequently required:1. the basics, date, sender, recipients2. title, occupation, duties
3. how involved in transaction within
company
4. circumstances of creation5. all direct/indirect recipients of
document OR substance
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Priv i lege Logs
Date
From
To
CCs
Topic
1/3/96 Smith Jones Day Notes re Audit
Committee Meeting
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Work Produc t Doc t r ine
Requirements:
Documents
Prepared in anticipation of litigation
By/for party or attorney
Disclosure: Substantial need
Undue hardship
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At t orney-Cl ient Pr iv i lege
1.
Communication
2. Made in confidence3.
To an attorney
4. By a client5. For the purpose of seeking legaladvice
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Priv i lege Logs
Common Logistical Problems:Business v. Legal HatsParent/AttachmentDescriptions
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Priv i lege Logs
Tension:need to reveal enough detail tosubstantiate privilege
vs.
waiver of privilege through excessive
detail as to communication.
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Priv i lege Logs
Descriptions held insufficient:"notes of audit meeting""notes of audit meeting regarding
environmental provisions of acquisition agreement""notes of audit meeting regarding legal implications of environmental provisions of acquisition agreement"
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Priv i lege Logs
Sufficient:"notes of audit meeting reflecting legaladvice as to whether ERISA precluded
certain environmental provisions of acquisition agreement"
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Priv i lege Logs
Inadequate Log Can Constitute Waiver:Insufficient log = failure to meet burdenof establishing privilege
refusal to consider in camera
no opportunity to cure
waiver as to ALL documents
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Tips t o Avo id Pr iv i lege
Log Prob lem s
do it right the first time (be sure the privilege is
applicable)
AAlpharma Inc. v. Kremers Urban Dev. Co.
negotiate specifics in CMO
agreements regarding parents, email threads,
categorical descriptions
beware of downside: categorical waiver
get list of all lawyers/consultants at outset
suggest use of master to resolve disputes
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An attorney now risks committing malpractice or
receiving court sanctions if he or she does notadequately understand how electronic informationis created, stored and communicated.Michael D. Fielding, You Need To Know This: Bankruptcy and Attorney-
Client Privilege in the Electronic Age, 25-10 ABIJ 1 (January 2007)Model Rule of Professional Conduct 1.6(a) statesthat a lawyer shall not reveal information relating
to the representation of a client unless the clientgives informed consent, the disclosure isauthorized to carry out the representation or thedisclosure is permitted by [Rule 1.6(b)].
The B ig Pic t ure Why Should I Care?
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They turned out to beshams, coming from a file
on his computer labeledfake docs.
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5 Basic St eps
5 Basic Steps
Best Practices for ESI*Discovery:
1) Planning2) Collection3)
Processing
4) Reviewing5)
Producing
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How do I re t r ieve w hat
s l ipped t hrough?
FCRA Rule 26 Zubulake Draft Federal Rule of Evidence 502
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FRCP Am end. t o t he Resc ue?
FRCP 26(b)(5)(B): Procedure for dealing withprivileged materials inadvertently produced
FRCP
16(b)(6): Allows the parties to make
agreements for dealing with privilege issues Clawback and similar agreements Incorporates reasoning from Zubulake v.UBS Warburg, 216 F.R.D. 280 (S.D.N.Y.
2003)
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Zubulake/Sedona Conferenc e
t o t he Resc ue?
1983 plaintiff sought 94 back-up tapes Plaintiff order to pay share of restoration cost
Defendant must pay all of their privilege
review cost
Encourages parties to come back with aclaw-back agreed order stating inadvertentdisclosure is not a waiver, docs should bereturned and that any notes or copies will be
destroyed or deleted (quoting Sedona Conf.)
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Right Bac k t o Where We St ar t ed
Advisory Cm t e Com m ent s
Rule 26(b)(5)(B) does not address whether privilege
or protection that is asserted after production was
waived by the production. Courts have developed
principles to determine whether and under what
waiver results from inadvertent production.
Agreements
maybe considered when a court
determines whether a waiver has occurred.
N.B. Not a cop out Rules cmte cannot exceedstatutory authority by creating substantive law.
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Draf t FRE 502 t o t he Resc ue?
Proposed in May 2005 by the Advisory Committee on
Evidence Rules
Would adopt the middle-of-the-road approach as to
what amounts to inadvertent production; this
approach focuses on precautions taken to avoiddisclosure
Provides that a clawback
agreement incorporated in
a federal court order would bind third parties
Requires direct enactment by Congress under Rules
Enabling Act so will not be enacted in the short term
(certainly not by Dec. 1, 2006)
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Draf t FRE 502 t o t he Resc ue?
Public comment period closed on 2/15/07back to
Advisory Committee (Step 4 of 8)
Rule 502. Attorney-Client Privilege and WorkProduct Limitations on Waiver
(a) Scope of waiver. In federal
proceedings, the
waiver by disclosure of an attorney-client privilege or
work product protection extends to an undisclosed
communication or information concerning the samesubject matteronlyif that undisclosed communicationor information ought in fairness to be considered with
the disclosed communication or information.
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Draf t FRE 502 t o t he Resc ue?
(b) Inadvertent disclosure. A disclosure of a
communication or information covered by the attorney-
client privilege or work product protection does notoperate as a waiver in a state or federal proceeding if the
disclosure is inadvertent and is made in connection withfederal litigation or federal administrative proceedings and if the holder of the privilege or work productprotection took reasonable precautions
to prevent
disclosure and took reasonably prompt measures, oncethe holder knew or should have known of the disclosure,
to rectify the error, including (if applicable) following the
procedures in Fed. R. Civ. P. 26(b)(5)(B).
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3 Approac hes for Ac c ess ing
Inadver t en t Disc losure
Specifically, three distinct positions have been
taken by the courts: (Hopson)1.
Strict Accountability/Absolute waiver
E.g., In re Sealed Case, 877 F.2d 976 (D.C.Cir. 1989)
Tax evasion case
errantly (agreed) disclosed 1 of 6
privileged memos.
[W]e
do not think it matters whether the waiver is
inadvertent
.
To hold, as we do, that an inadvertent disclosure will waive the
privilege imposes a self-governing restraint to be overly
inclusive on labeling documents as privileged. To readily do
so creates a greater risk of "inadvertent" disclosure by
someone
.
Subject matter waiverall 6 memos were held waived.
Other jurisdictions (1st
Cir., D.Me., N.D.Ind., D. Mass., N.D.Ga.,
and?)
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3 Approac hes for Ac c ess ing
Inadver t en t Disc losure
2. Lenient Approach
E.g., Ciba-Geigy Corp. v. Sandoz, Ltd., 916F.Supp. 404, 410-11 (D.N.J. 1995) (analyzing
whether truly inadvertentno waiver)
Other jurisdictions (8th
Cir., D.Colo., N.D. Ill.,
S.D. Fla, D.Del., D.Neb.)
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3 Approac hes for Ac c ess ing
Inadver t en t Disc losure (c on t )
3. Middle/Balancing ApproachE.g., Minatronics Corporation v. Buchanan Ingersoll, 23 Pa. D. &C.4th 1 (Pa. Ct. Com. Pl. 1995)
No waiver if:
the disclosure was inadvertent
A/C privilege application would still offer some protection
counsel took reasonable steps after learning of the mistake
recipient will not be prejudiced by non-use order.
Holding: Not waived
Little analysis (mainly rejecting subject matter waiver argument thatintentional production of portions of lawyers
file waived all
documents in that file).
But [d]ecisions
amount to a minefield of nuanced, slightly
differing opinions.
Herman Goldner v. Cimco Lewis, 58 Pa. D. &
C.4th 173 (Pa. Ct. Com. Pl. 2002).
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Herm an Goldner Inadver tent
Waiver Analys is
Minatronics/Balancing Approach
No waiver if:
the disclosure was inadvertent
A/C privilege application would still offer some protection
counsel took reasonable steps after learning of the inadvertent
production, and
recipient will not be prejudiced by non-use order.
Herman Goldner/Balancing Approach
Considers:
the reasonableness of the precautions taken to prevent disclosure
the inadvertence, extent and number of the disclosures
Time frame and steps taken after learning of disclosure, and
Fairness/Justice: Utility of post-disclosure privilege and prejudice to
recipient
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Herm an Goldner Inadver tent
Waiver Analys is
Herman Goldner
Considers:
the reasonableness of the precautions taken to prevent disclosure
the inadvertence, extent and number of the disclosures
Time frame and steps taken after learning of disclosure, and
Fairness/Justice: Utility of post-disclosure privilege and prejudice to recipient
Held: No waiver
Discloser took some [unidentified], though not overwhelming precautions
attributable to satisfying opponents request for speedy production prior todeposition was in favor of disclosure
21 docs completely disclosed v. bare representation of mistake was a wash
Discloser acted within one day of become aware of mistake
Precluding use by recipient was viable remedy where recipient showed no
evidence of prejudice
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Rule 26.
Genera l Prov is ions GoverningDisc overy; Dut y of Disc losure.(5) Claims of Privilege or Protection of Trial Preparation Materials.
(A) Information withheld. When a party withholds information otherwise discoverableunder these rules by claiming that it is privileged or subject to protection as trial
preparation material, the party shall make the claim expressly and shall describe the
nature of the documents, communications, or things not produced or disclosed in a
manner that, without revealing information itself privileged or protected, will enableother parties to assess the applicability of the privilege or protection.
(B) Information produced. If information is produced in discovery that is subject to
a claim of privilege or protection as trial-preparation material, the party making
the claim may notify any party that received the information of the claim and the
basis for it. After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has and may not use ordisclose the information until the claim is resolved. A receiving party may
promptly present the information to the court under seal for a determination of
the claim. If the receiving party disclosed the information before being notified,
it must take reasonable steps to retrieve it. The producing party must preserve
the information until the claim is resolved.* * *
(cont.)
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Planning
Rule 26 Conference
Clawback Agreement
Education
Key Advice:
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Morals of t he ESI St ory
Know the rules and applicable case law
Plan Ahead Make early detailed agreements with opponent
Dont start process without attempting above
Employ Best Practices (reasonableprecautions)
Incorporate Claw-Back Safety-Net Into CourtOrder
Act Quickly Upon Any Inadvertent Disclosure
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Ear ly At t ent ion t o eDisc overy
Issues : Rule 26(f)
Under Rule 26(f), the parties must confer prior to Rule 16
conference
Revised Rule 26(f) invites the parties to discuss issues
relating to:
Preserving discoverable information
Disclosure of ESI
Form of production for ESI
Inadvertent disclosure
Purpose
to force early discussion about preservation
and production to minimize difficulties and disputes later
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Agreem ent s Re la t ed t o
Pr iv i lege
Committee Notes to Rules 16 and 26 invite the
parties to reach agreements concerning privilege
Recognition that, because of the volume that is
created when electronic data is involved, engaging in
detailed review to identify and withhold for privilegeincreases the expense of discovery and creates
additional delays
Existence of metadata adds complexity to privilegereview
Notes specifically mention quick peek
and
clawback agreements
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Quic k Peek Agreem ent s
Charac te r i s t i cs
1.
Request for ESI propounded
2.
Responding party produces files for inspection
without waiving privilege
3. Requesting party designates the files it wishesto have produced but keeps no copies4.
Responding party then reviews only the subset
designated and logs privileged files, withholdsthem from production, and produces the non-
privileged files
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Claw bac k Agreem ent s
Charac te r i s t i cs
Parties agree that even though there has been an initial
review and withholding on grounds of privilege, if there isinadvertent production of privileged documents, then
producing party will notify of its production and ask for
its return
receiving party will return and not use
Should expressly provide that parties acknowledge that
steps have been taken to protect privilege and that anyproduction of privileged material is deemed inadvertent
and does not amount to a waiver; enforceability of this
provision, however, is not guaranteed in light of proposed
Rule 26(b)(5)(B)
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Claw bac k Agreem ent
Rule 26(b)(5)(B)
Revised Rule 26(b)(5)(B) allows parties to assert privilege
or work product protection after production.
Attempt to codify a clawback
agreement
Parallels the provisions in Rules 16 and 26(f)
After being notified, the receiving party must return ordestroy, unless the receiving party wants to present the
issue to the court for a determination of whether the
production was inadvertent or not, in which case thereceiving party must sequester the material received until
the court rules
Purpose
recognition that there is a substantial risk of
inadvertent disclosure based on volume of electronic data
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Prob lem s w i t h Claw bac k
Agreem ent s and Rule 26(b)(5)(B)
Revised Rule merely preserves issue for court to
decide under the law of the jurisdiction
Courts apply three approaches to inadvertent
production:
1.Strict
any voluntary disclosure waives privilege
2.Lenient
attorney negligence does not waive
privilege, and gross negligence may
3.Middle-of-the-road
balances factors including
the reasonableness of the precautions taken and
time to rectify the disclosure
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Plan Your Pr iv i lege Review
Evaluate best tools and procedures for
performing privilege review prior toproduction
Educate reviewers, staff and vendorstogether for consistency
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Never write when you can
talk. Never talk when youcan nod. And never, ever,
ever use email.
Elliot Spitzer