Inadvertent Disclosure of Privileged Records in E-Discovery
A danger in e-discovery is that the party disclosing records will inadvertently give its opponent some that are protected by attorney-client privilege (i.e., attorney-client confidentiality) or as attorney work product. E-discovery records are often so voluminous that privileged records might be turned over by mistake.
To address the danger Congress is adding Rule 502 to the Federal Rules of Evidence. Effectively the new Rule provides that if a litigant inadvertently discloses a privileged document, he can still prevent his opponent from using it – so long as he took reasonable steps to prevent the disclosure in the first place. In other words, before releasing records, a litigant needs to make a reasonable search through them to cull out (screen) any that contain protected attorney-client communications (or attorney work product).
Such a search is not always easy. In Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008), the defendant did search to cull or filter out privileged communications before delivering a mass of e-discovery records to the plaintiff. But the cull was imperfect, and 165 privileged documents passed to the plaintiff.
The defendant argued those 165 records should still be protected (i.e., the plaintiff should return them and refrain from using them), but the court disagreed. The court said for those 165 documents the defendant had “waived” the privilege. The court justified its decision by criticizing the methods the defendant used to cull out the privileged records, noting that simple keyword searches are known to miss things in electronically stored information (ESI). The court concluded the defendant’s methods were not reasonable, as the defendant could not document it had designed and executed anything beyond a slapdash, rudimentary keyword search.
An explanatory note to new Rule 502 describes a good search: “Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken ‘reasonable steps’ to prevent inadvertent disclosure. The implementation of an efficient system of records management before litigation may also be relevant.” --Explanatory Note on Evidence Rule 502 Prepared by the Judicial Conference Advisory Committee on Evidence Rules (Revised 11/28/2007)
Accordingly, Rule 502 will give enterprises more reason to keep well-indexed e-mail records in an archival system that supports sophisticated searches and makes records about those searches as they are executed.
Mr. Wright is an advisor to Messaging Architects, developers of and consultants on EDD and e-mail archival tools.