For example, look no further than the highly publicized inadvertent disclosure (disaster?) that occurred in the Alex Jones defamation trial earlier this month.
Inadvertent disclosure can happen to almost anyone who engages in discovery. Especially today—in the age of E-Discovery—the risk of inadvertent disclosure is ubiquitous. Even seemingly straight forward cases can involve thousands of pages of emails; in larger cases, reviewers wade through hundreds of thousands or millions of pages of material that is potentially discoverable. Add in factors like large review teams, case deadlines and economic constraints, and it is easy to envision a scenario where an inadvertent disclosure occurs. With this background in mind, it is imperative that attorneys are diligent in preventing inadvertent disclosure and react promptly after disclosure occurs.
Federally, F.R.C.P. 26(b)(5)(B) and F.R.E 502 offer some relief to casualties of inadvertent disclosure.
F.R.C.P. 26(b)(5)(B) provides that if information produced in discovery is subject to a claim of privilege or work product, “the party making the claim may notify any party that received the information of the claim and the basis for it.” Further, “after being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim.”
Elsewhere, F.R.E. 502 (b) notes that inadvertent disclosures made in a federal proceeding do “not operate as a waiver in a federal or state proceeding” if the disclosure is inadvertent, the holder of the privilege took reasonable steps to prevent the disclosure, and the holder promptly took reasonable steps to rectify the error. Further, F.R.E. 502(d) empowers federal courts to order that “privilege or protection” is not waived, in the present action or any other federal or state proceeding, by disclosure connected with the litigation pending before the court.
Pennsylvania does not have rules analogous to F.R.E. 502 or F.R.C.P. 26(b)(5)(B). However, in Carbis Walker, LLP v. Hill, Barth and King, LLC, 930 A.2d 573 (Pa. Super. Ct. 2007), the Superior Court adopted the federal “reasonableness” approach to waiver by holding that whether an inadvertent disclosure is a wavier depends on “the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; the number of inadvertent disclosures; the extent of the disclosure; any delay and measures taken to rectify the disclosure; and whether the overriding interests of justice would or would not be served by relieving the party of its errors.”
Considering Carbis and the lack of Pennsylvania rules analogous to F.R.E 502 and F.R.C.P. 26(b)(5)(B), what should PA practitioners do to prevent inadvertent disclosure? Here are some strategies that will help avoid damaging your case due to inadvertently produced documents:
Confer with the client to understand what privileged and confidential information may exist in the document review set.
This conversation should take place prior to the start of a document review to get a handle on what privilege and confidentiality issues the case team and document reviewers should look out for. During the review, attorneys should periodically check in with clients as privilege and/or confidentiality concerns and issues arise.
Draft a document review memorandum that outlines privilege and confidentiality issues.
This memorandum should alert reviewers to the type of privileged and confidential information that may exist in the review set. Further, the memorandum should describe how reviewers should tag privileged and/or confidential information, what information should be redacted and what materials need further review or should be shown to the client.
During first level document review, segregate potentially privileged and/or confidential materials.
Use attorney names and email addresses along with law firm names and email domains as search terms to locate potentially privileged materials. Likewise, to identify potentially confidential items, use search terms related to personally identifiable information, sensitive business information, or trade secrets. Once these materials are identified, segregate them so that sets of potentially privileged documents can receive special attention.
Inadvertent disclosure of privileged and/or confidential materials can be catastrophic. Having reviewers focus on these materials as part of a separate workflow dedicated to privilege and confidentiality analysis is prudent. Also, if using a platform like Relativity or DISCO for review, utilize highlighting features so that terms related to privilege and confidentiality stand out and can be easily identified
Obtain a Protective Order and/or a Claw Back Agreement.
Although the Pennsylvania rules do not contain an analogous rule to F.R.E. 502(d), there is nothing that prevents the parties from agreeing to and submitting a Rule 502(d)-like order to a Pennsylvania state court. The proposed order should include a statement that an inadvertent disclosure does not constitute a wavier, regardless of the reasonableness of precautions or the other Carbis factors. The order should replicate the “claw back” that F.R.C.P. 26(b)(5)(B) provides and should provide a procedure for handling inadvertently disclosed materials.
Even without a court order, simply having an agreement between the parties helps to establish that the parties are taking reasonable precautions to preserve privilege and confidentiality.
Segregate and clearly label material that is to be produced and material that has not yet been reviewed or vetted.
Think again about the Alex Jones issue – how did a forensic image of his cell phone end up in an .ftp site that was shared with opposing counsel? This mishap illustrates the importance of segregating and clearly labeling material that has been reviewed and is to be produced. Likewise, attorneys should label and set aside material that needs further review or is to be withheld from production as privileged, confidential or non-responsive.
Once an inadvertent disclosure is discovered, immediately notify opposing counsel of the disclosure. Even if there is not a 502(d)-like order or Claw Back Agreement in place, attorneys should act fast to demonstrate there was no delay in the efforts to protect the privileged and/or confidential information that has been disclosed and prevent further dissemination.
Inadvertent disclosure and best practices for identifying and protecting privileges in E-Discovery will be discussed during the upcoming Klehr Harrison webinar, “Don’t Let it Slip – Best Practices for Identifying and Protecting Privileges in E-Discovery.” The webinar will be presented by Klehr Harrison partner Paige Willan, E-Discovery Counsel Chris Orrin and Drexel University law student Alexandria Richards. Registration is still open.