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Ethical Hazards Posed by the Digital Age

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Title: Ethical Hazards Posed by the Digital Age


1
Ethical Hazards Posed by the Digital Age
Leslie A.T. Haley Sr. Asst. Ethics
Counsel Virginia State Bar
2
Dangers of Technology
  • Attorneys make excuses for not learning good
    informational technology skills. . . .
  • Im a technophobe
  • Im technology challenged
  • Im techno-illiterate
  • My VCR still flashes 1200 since I bought it 10
    years ago.

3
Dangers of Technology
  • What courts are saying No excuses. You owe
    duties of competence and diligence.
  • You need to learn your clients IT architecture
    as soon as possible.
  • Litigation holds
  • Duty to verify and monitor the hold
  • Duty to hire and consult with experts if you do
    not understand
  • Duty to scrub metadata
  • Duties re inadvertently transmitted info

4
Dangers of Technology
  • Duty to Google Munster v. Groce, (Ind. App.
    2005) (lawyer failed to use due diligence to
    obtain personal service on defendant could have
    determined whereabouts using Google).
  • Duty to check MySpace, FaceBook,
    AdultFriendFinder and other online social
    networks.

5
Scope of Presentation
  •     Duty to scrub electronic documents for
    metadata duty of attorney to mine or not mine
    opponents electronic documents for metadata   
    Lawyers use of information or data obtained by
    client in violation of ECPA or other computer
    trespass laws    Electronic file retention,
    storage, destruction, and delivery to client   
    Ethical issues arising out of e-discovery
    Qualcomm, Inc. v. Broadcom Corp.    Unintended
    relationships Are you my lawyer? Ethical
    duties owed to persons who communicate via
    lawyers website or Internet mail    What
    should a lawyer do when an opponent mistakenly
    transmits electronic documents that contain
    privileged information?

6
Metadata
7
What is Metadata?
  • Metadata, by its nature, is a secondary class of
    data. Although commonly described as data about
    data, a more formal definition has been given as
    evidence, typically stored electronically, that
    describes the characteristics, origins, usage and
    validity of other electronic evidence.

8
What is Metadata?
  • Substantive metadata is the notorious version of
    metadata, which is responsible for some of the
    horror stories involving electronic documents. In
    one case, the Pentagon had posted a report online
    detailing an incident in which a U.S. soldier
    accidentally killed an Italian secret service
    agent in Iraq. Readers were able to access
    redacted, blacked-out information in the .PDF
    file by copying and pasting the confidential
    information into a Word document.

9
What is Metadata?
  • An adverse party was able to access a previous
    version of a document and learned that a suit by
    the SCO Group against DaimlerChrysler was
    originally intended for the Bank of America.
  • J. Brian Beckham, Production, Preservation and
    Disclosure of Metadata, 7 COLUM. SCI. TECH. L.
    REV. 1, 2 (2006).

10
What It Can Disclose
  • Amount of time spent with document open
  • Original authors and editors
  • Creation, access, modification dates
  • Undo changes to reveal original document and/or
    changes made to it

11
General Metadata Fields
12
Common Metadata Fields
13
General Metadata Fields
14
Metadata
  • Some real examples from court papers filed by
    good law firms since 2005.

15
(No Transcript)
16
Who Ya Gonna Sue?
17
One Last Happy Thought
18
Why It Matters Part 1
  • Senders Duties
  • Recipient's Duties

19
Senders Duties
  • RPC 1.6 Protect client confidential information
  • RPC 1.1 Provide competent representation

20
Every Day Reducing Metadata
  • Microsoft Word
  • Microsoft has patches
  • Word Perfect
  • Patches available
  • Commercial software scrubbers
  • WorkShare
  • iScrub
  • Others ask/Google
  • Adobe Acrobat PDF
  • Some metadata persists except in Acrobat 8
    Professional
  • Paper

21
Recipients Duties
  • Is it unethical to look for metadata that might
    contain privileged or confidential information?
  • If so, cant look.
  • RPC 8.4 Misconduct to engage in conduct
    involving dishonesty, fraud, deceit or
    misrepresentation.

22
Recipients Duties
  • Is transmission of metadata in a file like
    inadvertently faxing a privileged document?
  • If so, then rules and cases that
  • require notifying the sender
  • could apply

23
Recipients Duties
  • ABA Model RPC 4.4(b) A lawyer who receives a
    document relating to the representation of the
    lawyers client and knows or reasonably should
    know that the document was inadvertently sent
    shall promptly notify the sender.

24
Recipients Duties
  • VA LEO 1702 Following ABA LEO 368, the Bar
    concludes that a lawyer receiving "inadvertently
    transmitted confidential documents from opposing
    counsel or opposing counsel's client" must return
    the documents. Although prohibiting a lawyer from
    reading an inadvertently transmitted document
    based on "boilerplate" notices on fax cover pages
    would "violate reality," once the lawyer
    recognizes a document as confidential, the lawyer
    "has an ethical duty to notify opposing counsel,
    to honor opposing counsel's instructions about
    disposition of the document, and not to use the
    document in contravention of opposing counsel's
    instructions."

25
Can You Look? Must You Notify?
  • Looking prohibited notice required
  • NYSBA Op. 749 Ariz. Bar Op. 07-03
  • Dishonest to look Dishonest to look
  • Notify of receipt Notify of receipt
  • Florida Bar Op. 06-2 Virginia? LEO 1702?
  • Cant look Dishonest?
  • Notify of receipt D.C.?
  • Alabama State Bar Opinion Number 2007-02
  • Dishonest to look
  • Notify of receipt

26
Can You Look? Must You Notify?
  • Can look
  • ABA Op. 06-442
  • Can view and use
  • Notification not decided
  • Maryland Op. 2007-09
  • Can view and use
  • No notification required
  • Colo. Bar Op. 119 (2008)
  • Can view and use
  • No notification required

27
What Does This Mean?
  • Can you look?
  • Where do you practice?
  • Must you notify?
  • Where do you practice?
  • - Do ethics rules include Rule 4.4(b)?
  • - Does it apply?
  • - What does it say?
  • - Any case law?

28
Why it Matters (Part 2)
  • Outgoing e-documents may contain embedded data
  • Privilege review
  • Substantive review
  • Other sides e-documents may contain it

29
Why it Matters (Part 2)
  • Rule 3.4 (a) A lawyer shall not obstruct
    another party's access to evidence or alter,
    destroy or conceal a document or other material
    having potential evidentiary value for the
    purpose of obstructing a party's access to
    evidence. A lawyer shall not counsel or assist
    another person to do any such act.

30
Why it Matters (Part 2)
  • Rule 3.4 (e) a lawyer shall not . . . fail to
    make reasonably diligent effort to comply with a
    legally proper discovery request by an opposing
    party.

31
Why It Matters (Part 2)
  • Metadata is not explicitly addressed in the
    Federal Rules of Civil Procedure. The word
    metadata does not appear at all in the Rules,
    and appears only once in the Advisory Committee
    Comments to the Rules. However, despite efforts
    to the contrary, metadata is clearly included
    within the definition of electronically stored
    information (ESI) contained in Rule 34.

32
Why it Matters, Part 2
  • The December 2006 Amendments to the Federal Rules
    added new provisions relating to the production
    of electronically stored information. Rule 34(b)
    allows the requestor to specify the form or
    forms in which electronically stored information
    is to be produced. Therefore, if the information
    contains metadata, the requesting party can
    specify that metadata be produced along with the
    primary data. The producing party in its
    response may state an objection to the requested
    form for producing electronically stored
    information. If it objects to the requested
    form, the producing party must also state the
    form or forms it intends to use.

33
Using Digital InformationObtained Unlawfully
  • RULE 4.4 Respect For Rights Of Third Persons
  • In representing a client, a lawyer shall not use
    means that have no purpose other than to
    embarrass, delay, or burden a third person, or
    use methods of obtaining evidence that violate
    the legal rights of such a person. (emphasis
    added)

34
Unlawfully Obtained Information
  • Responsibility to a client requires a lawyer to
    subordinate the interests of others to those of
    the client, but that responsibility does not
    imply that a lawyer may disregard the rights of
    third persons. It is impractical to catalogue all
    such rights, but they include legal restrictions
    on methods of obtaining evidence from third
    persons.

35
Unlawfully Obtained Information
  • A lawyer shall not counsel a client to engage, or
    assist a client, in conduct that the lawyer knows
    is criminal or fraudulent, but a lawyer may
    discuss the legal consequences of any proposed
    course of conduct with a client and may counsel
    or assist a client to make a good faith effort to
    determine the validity, scope, meaning, or
    application of the law. Va. Rule 1.2 (c).

36
Unlawfully Obtained Information
  • VA LEO 1786 (2004) Whether the lawyer can use
    the information will depend on the nature of the
    documents, the nature of the source of the
    information, the method used by the client to
    gather the information, and finally, whether the
    attorney directed the client to do so. The
    limited facts provided prevent the committee from
    opining on the issue other than to reiterate that
    the attorney can only use such information if
    doing so would not violate Rule 3.4(a) and Rule
    4.4 The committee notes that Rule 8.4(a)
    precludes an attorney from violating the Rules of
    Professional Conduct through the acts of
    another. Thus, the attorney should not direct
    the client to obtain evidence via a method the
    attorney himself is ethically prohibited from
    using.

37
Electronic Files
  • May a lawyer require, as a condition of the
    representation, that the clients file be kept in
    electronic format?
  • Yes, so long as the client's interests are not
    prejudiced by such a condition for
    representation. Va. LEO 1818.

38
Electronic Files
  • In determining what to destroy or retain in the
    client's file, the attorney should be mindful of
    the committee's recommendations in LEO 1305 that
    before destroying a client's paper file the
    lawyer should review that file to make sure that
    any documents that may be of continued use or
    benefit to the client only if they are maintained
    in paper form not destroyed. In deciding whether
    to destroy a paper document that was provided by
    the client to the lawyer, for example, the lawyer
    should consult with the client and obtain consent
    to destroy it, after it has been converted to an
    electronic document.

39
Electronic Files
  • Are e-mails and other electronic documents part
    of the clients file?
  • Yes. A lawyer's clients have a presumptive right
    of full access to e-mails and other electronic
    documents in the lawyer's possession, but clients
    who request copies of those documents generally
    may be charged a reasonable fee for gathering and
    producing them. New York City Bar Ass'n Comm. on
    Professional and Judicial Ethics, Formal Op.
    2008-1(July 2008).

40
File Retention/Destruction
  • Applicable Rules of Conduct
  • Rule 1.4Duty to inform/notify client regarding
    destruction of file or client property
  • Rule 1.6Duty to protect client confidences and
    secrets while storing or disposing of client
    files or property.

41
File Retention/Destruction
  • Other Considerations in Determining When to
    Destroy a Clients File
  • documents can now be imaged and stored
    electronically
  • statutes of limitations regarding claims by
    minors or other incapacitated clients and
    governmental entities.
  • contact professional liability insurer for
    guidance on file retention.
  • Keep detailed index of destroyed files.

42
E-discovery and Qualcomm
43
Qualcomm v. Broadcom
  • The Qualcomm case, tried in federal court in San
    Diego, involved allegations by Qualcomm that
    rival Broadcom infringed certain Qualcomm patents
    involving the coding of video files. Part of
    Broadcoms response was a claim that the patents
    are unenforceable or waived because they
    improperly cover industry standards set by a body
    known as the JVT in a process in which Qualcomm
    participated.

44
Qualcomm v. Broadcom
  • Throughout discovery, pre-trial summary judgment
    motions, and at trial, Qualcomm disputed
    Broadcoms argument. Qualcomm claimed that it did
    not participate in the JVTs standards-setting
    activities until after May 2003, the month when
    the JVT issued the relevant video coding
    standard. But, at trial, a Qualcomm witness
    admitted that during his pre-trial preparation,
    21 emails were pulled from his computer
    concerning Qualcomms JVT participation, and
    these were not produced in the litigation.

45
Qualcomm v. Broadcom
  • While preparing Qualcomm witness Viji Raveendran
    to testify at trial, attorney Adam Bier
    discovered an August 6, 2002 email to
    viji_at_qualcomm.com welcoming her to the avc_ce
    mailing list. Several days later, on January 14,
    2007, Bier and Raveendran searched her laptop
    computer using the search term avc_ce and
    discovered 21 separate emails, none of which
    Qualcomm had produced in discovery. The email
    chains bore several dates in November 2002 and
    the authors discussed various issues relating to
    the H.264 standard.

46
Qualcomm v. Broadcom
  • The Qualcomm trial team decided not to
  • produce these newly discovered emails
  • to Broadcom, claiming they were not
  • responsive to Broadcoms discovery
  • requests.

47
Qualcomm v. Broadcom
  • This evidence led to the disclosure, four months
    after the trial, that Qualcomm had withheld as
    many as 46,000 documents, many of them emails,
    totaling more than 200,000 pages. These documents
    indicated that Qualcomm indeed had participated
    in the JVT standards-setting process as early as
    2002.

48
Qualcomm v. Broadcom
  • At the conclusion of the trial, Judge Brewster
    further found that Qualcomms counsel
    participated in an organized program of
    litigation misconduct and concealment throughout
    discovery, trial, and post-trial before new
    counsel took over lead role in the case on April
    27, 2007. He referred Broadcoms Motion for
    Sanctions to Magistrate Judge Barbara Major.

49
Qualcomm v. Broadcom
  • Magistrate Judge Barbara L. Major held that both
    Qualcomm and six of its attorneys committed
    misconduct, in failing to conduct an e-mail
    search on obvious custodians on obvious terms on
    an issue that was obviously central to the case.

50
Qualcomm v. Broadcom
  • She ordered Qualcomm to pay over 8.5 million for
    Broadcoms attorneys fees and other litigation
    costs (less costs ordered to be paid earlier),
    referred six lawyers on Qualcomms litigation
    team to the State Bar of California for
    investigation.

51
Qualcomm v. Broadcom
  • Magistrate Judge Majors January 2008 order set
    off alarms in law firms and in-house legal
    departments across the country. Her opinion
    indicated that a negligent failure to comply with
    discovery could lead to more than losing a case
    and paying the other sides fees. Noncompliant
    attorneys now also run the risk of a state
    disciplinary referral.

52
Qualcomm v. Broadcom
  • Federal Rule of Civil Procedure 26(g)(2), under
    which attorneys certify that to the best of their
    knowledge, information and belief, formed after
    a reasonable inquiry (a phrase that the
    magistrate put in bold), the discovery response
    is consistent with the rules and law, not
    interposed for an improper purpose, and not
    unreasonable or unduly burdensome or expensive.
  • a trial court may impose sanctions proportionate
    with the harm caused by the discovery violation,
    and the court has inherent supervisory power over
    discovery.

53
Qualcomm v. Broadcom
  • The attorneys appealed the sanctions to U.S.
    District Judge Rudi Brewster, who presided over
    the patent infringement lawsuit in San Diego
    federal court.
  • Judge Brewster vacated Major's sanctions against
    the six outside lawyers and ruled that Qualcomm's
    attorney-client privilege should not stop them
    from defending themselves in an appeal.

54
Qualcomm v. Broadcom
  • Brewster said the six lawyers identified as
    Batchelder, Bier, Leung, Mammen, Patch and Young,
    could exercise a "self-defense exception" to the
    attorney-client privilege previously asserted by
    Qualcomm in a sanctions hearing.
  • Brewster sent the case back to Major for a
    rehearing on the lawyer sanctions, but shielded
    Qualcomm and its employees from exposure to
    further punishment in the discovery violations.

55
E-discovery and Ethics
  • What are the ethics issues
  • Duty to make reasonably diligent effort to
    respond to lawful discovery request - Rule 3.4
    (e)
  • Duty to follow standing rules of tribunal - i.e.
    discovery rules - Rule 3.4 (d)
  • Duty not to obstruct opposing partys access to
    evidence - Rule 3.4 (a)
  • Duty to not make false statements of law or fact
    - Rule 4.1
  • Duty to protect privileged and confidential
    information - Rule 1.6

56
E-discovery and ESI
  • The obligation of any litigant (or possible
    litigant) to preserve potentially responsive
    evidence obviously does not present a new
    issue -- but the enormous volume of electronic
    communications clearly makes the analysis more
    difficult, and exacerbates the possible burden.

57
Preservation of ESI
  • It should go without saying that litigants must
    preserve potentially responsive documents
    (including electronic documents). The duty
    obviously arises before a discovery request
    arrives -- and can also arise before litigation
    begins.

58
Preservation of ESI
  • the obligation to preserve evidence
    arises . . . when a party should have known that
    the evidence may be relevant to future
    litigation.
  • Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216
    (S.D.N.Y. 2003).
  • The court found that officials at UBS Warburg
    were on notice that the plaintiff might sue the
    company for gender discrimination -- thus
    triggering the preservation duty.

59
Preservation of ESI
  • Must a corporation, upon recognizing the threat
    of litigation, preserve every shred of paper,
    every e-mail or electronic document, and every
    backup tape?
  • The answer is clearly, "no." Such a rule would
    cripple large corporations, like UBS, that are
    almost always involved in litigation. As a
    general rule, then, a party need not preserve all
    backup tapes even when it reasonably anticipates
    litigation. Zubulake, supra at 217.

60
Preservation of ESI
  • The Zubulake court found that UBS should have
    preserved electronic documents that were
    ultimately destroyed. It ordered UBS Warburg to
    pay the cost of the plaintiff's motion, directed
    the company to reimburse plaintiff for the costs
    of any depositions or re-depositions necessitated
    by the document destruction, and approved a jury
    instruction containing an adverse inference about
    the destroyed back-up tapes.

61
Preservation of ESI
  • ETrade Sec. LLC v. Deutsche Bank AG, Civ. Nos.
    02-3711  -3682 RHK/AJB, 2005 U.S. Dist. LEXIS
    3021, at 14 (D. Minn. Feb. 17, 2005)
  • (assessing a spoliation claim against Deutsche
    Bank a litigant asserting a spoliation claim
    must show bad faith if its adversary destroyed
    documents before the appropriate "trigger date,"
    but need not show bad faith if documents are
    destroyed after that date defining the "trigger
    date" as the date "when a party knows or should
    have known that the evidence is relevant to
    future or current litigation").

62
Preservation of ESI
  • Broccoli v. Echostar Commcns Corp., 229 F.R.D.
    506, 512, 510-11 (D. Md. 2005)
  • (holding that a company had engaged in
    spoliation, and approving an adverse spoliation
    of evidence instruction in the jury
    instructions.)

63
Preservation of ESI
  • A court ordered Philip Morris to pay 2.75
    million as a sanction for not preserving relevant
    e-mails, and also prohibited Philip Morris from
    relying on the testimony of any of its executives
    who had not saved their e-mails.
  • United States v. Phillip Morris USA Inc., 327 F.
    Supp. 2d 21 (D.D.C. 2004).

64
Preservation of ESI
  • Morgan Stanley lost a highly publicized Florida
    state court case involving allegations of
    document spoliation. The verdict against Morgan
    Stanley was approximately 1.5 billion.
  • The New York Times (5/19/05) "Jury Tallies
    Morgans Total at 1.45 Billion."

65
Victor Stanley v. Creative Pipe
  • A lesson on how to lose the privilege
  • May 29, 2008
  • U.S. District Court, MD
  • Federal Magistrate Judge Paul W. Grimm
  • Defendants inadvertently produced 165 privileged
    documents
  • Judge Grimm ruled that the privilege had been
    lost.

66
What did the Defendants Do to Deserve This?
  • Defendants blamed the volume of production and
    lengthy review process.
  • Grimm pierced the ACP b/c 165 docs not just 1 or
    2.
  • Defs asked for a claw back agreement, but then
    w/d request, stating they could do a full review.
  • Pls easily discovered the docs, segregated the
    privileged materials and notified defense
    counsel. Could have been done in one hour using
    desktop search tool!
  • Should have been easy to find and segregate
    privileged material.

67
Fed. R. Civ. P. Rule 16
  • Need to address electronic data discovery (EDD)
    in scheduling order, including any agreement
    reached re inadvertently produced material that
    is privileged.
  • Prepare client to deal with ESI at the outset.
  • Judges are recommending separate claw back
    agreement b/c Rule 26s claw back provision d/n
    address substantive law.
  • You should have an EDD expert

68
EDD
  • Meet and confer with counsel re production and
    preservation issues.
  • Active Date only?
  • What format? Native? .PDF? .TIFF?
  • What ESI needs preservation?
  • What is the timeline for production?
  • Costs?

69
Study the FRCP!!
70
In re Seroquel Product Liability Litigation
  • 1/26/2007, M.D., Fla.
  • Good Case Management Order
  • TIFF with load files specified
  • Specifies Metadata fields to be produced
  • Specifies IT people to be made available if
    questions arise
  • Walks through many of the new federal rules.

71
Inadvertent ProductionFactors to Consider
  • Reasonable precautions taken to prevent
    inadvertent disclosure?
  • Number of documents disclosed?
  • Extent of the disclosure?
  • Delay in taking action to rectify disclosure?
  • Overriding interests of justice?

72
Misdirected Communications
  • Compare duty of receiving lawyer under ABA MR 4.4
    (b) with duties under VA LEO 1702.
  • ABAonly duty is to notify sender
  • VAdont read dont use, notify sender abide
    by senders instructions
  • Still leaves open substantive issue whether
    privilege is waived
  • Parties may agree to Clawback Policy which may
    or may not address waiver issue. See Fed. R.
    Civ. P. 26 and proposed Fed. R. Evid. 502.

73
The original ABA position
  • In 1992, the ABA issued a surprisingly strong
    opinion directing lawyers to return obviously
    privileged or confidential documents
    inadvertently sent to them outside the document
    production context. In ABA Formal Op. 92-368
    (11/10/92), the ABA indicated that as a matter of
    ethical conduct contemplated by the precepts
    underlying the Model Rules, (a) the lawyer
    should not examine the privileged materials
    once the inadvertence is discovered, (b) should
    notify the sending lawyer of their receipt and
    (c) should abide by the sending lawyer's
    instructions as to their disposition.

74
The Current ABA Position
  • However, the ABA has retreated from this
    position. As a result of the Ethics 2000 Task
    Force Recommendations, ABA Model Rule 4.4(b) now
    indicates that "a lawyer who receives a
    document relating to the representation of the
    lawyer's client and knows or reasonably should
    know that the document was inadvertently sent
    shall promptly notify the sender" (emphasis
    added).

75
ABA MR 4.4 (b)
  • Comment 2 to this Rule reveals that in its
    current form the ABA's approach is both broader
    and narrower than the ABA had earlier announced
    in its Legal Ethics Opinions.
  • ABA Model Rule 4.4 is broader because it applies
    to documents "that were mistakenly sent or
    produced by opposing parties or their lawyers"
    (emphasis added), thus clearly covering document
    productions. ABA Model Rule 4.4 cmt. 2.

76
ABA MR 4.4 (b)
  • The Rule is narrower than the earlier Legal
    Ethics Opinion because it explains that
  • If a lawyer knows or reasonably should know that
    such a document was sent inadvertently, then this
    Rule requires the lawyer to promptly notify the
    sender in order to permit that person to take
    protective measures. Whether the lawyer is
    required to take additional steps, such as
    returning the original document, is a matter of
    law beyond the scope of these Rules, as is the
    question of whether the privileged status of a
    document has been waived. Similarly, this Rule
    does not address the legal duties of a lawyer who
    receives a document that the lawyer knows or
    reasonably should know may have been wrongfully
    obtained by the sending person. ABA Model Rule
    4.4 cmt. 2 (emphasis added).

77
ABA MR 4.4 (b)
  • In its new form, the ABA approach defers to case
    law on the issue of whether a lawyer must return
    such documents, but provides a professional "safe
    harbor" for those who do.
  • Some lawyers may choose to return a document
    unread, for example, when the lawyer learns
    before receiving the document that it was
    inadvertently sent to the wrong address.
    Although a lawyer is not required by applicable
    law to do so, the decision to voluntarily return
    such a document is a matter of professional
    judgment ordinarily reserved to the lawyer. Id.,
    cmt. 3.

78
The Va. Position
  • LEO 1702 relies in part on ABA Formal Opinions
    92-368 and 94-382.  Since issuing those opinions,
    the ABA has revised Model Rule 4.4 to include
    express language requiring only notice to the
    other attorney when the attorney/client materials
    are inadvertently transmitted. 
  • Virginia has not made a corresponding change to
    its Rules of Professional Conduct the analysis
    in LEO 1702 remains the pertinent authority on
    this issue in Virginia.  Va. LEO 1786 (2004) at
    n.7

79
The Federal Rules
  • Fed. R. Civ. P. 26(b)(5)(B) requires a party
    receiving privileged or work product documents
    claimed to have been inadvertently produced by
    the other side to hold those documents until a
    court analyzes the situation.

80
The Federal Rules
  • But Rule 26 provides little comfort to litigants
    on the waiver issue
  • In Hopson v. Mayor City Council of Baltimore,
    Civ. A. No. AMD-04-3842, 2005 U.S. Dist. LEXIS
    29882 (D. Md. Nov. 22, 2005), a magistrate judge
    correctly noted that the new federal rule simply
    describes a process - leaving any waiver issue up
    to a reviewing court. Because some courts take an
    unforgiving view of any inadvertent production of
    privileged documents, litigants in those courts
    will still lose their protection.

81
The Federal Rules
  • This rule does not address whether the production
    has waived any protection. Fed. R. Civ. P.
    26(b)(5) Committee Note. Any agreements reached
    under Fed. R. Civ. P. 26(f)(4) and any orders
    entered under Fed. R. Civ. P. 16(b)(6) "may be
    considered when a court determines whether a
    waiver has occurred."

82
The Federal Rules
  • Fed. R. Civ. P. 16(b)(6) indicates that a
    scheduling order may include agreements among the
    litigants for post-production claims of privilege
    or work product protection.
  • The litigants may agree to the "initial provision
    of requested materials" without a waiver called
    a "quick peek" procedure under Fed. R. Civ. P.
    26(f) Committee Note or a requirement that the
    receiving party return inadvertently produced
    protected materials upon a "timely"
    post-production notice of protection called a
    "clawback" procedure under Fed. R. Civ. P. 26(f)
    Committee Note.

83
The Federal Rules
  • Under new Fed. R. Civ. P. 26(f), litigants should
    meet and confer about such items as a
    post-production privilege or work product claim,
    and whether to include such an agreement in a
    court order.
  • Fed. R. Civ. P. 26(f)(4).

84
The Federal Rules
  • The Committee notes that litigants often spend
    large amounts of money reviewing documents for
    privilege, and that mistakes can result in an
    argument that there has been a subject matter
    waiver. These problems become "more acute" with
    electronic discovery, including metadata. Fed. R.
    Civ. P. 26(f) Committee Note. The parties can
    agree to protocols that include "quick peek" and
    "clawback" provisions.

85
The Federal Rules
  • In "most circumstances," a party receiving
    protected "information" under such arrangements
    cannot claim a waiver. Such voluntary
    arrangements can be incorporated into a case
    management order under Fed. R. Civ. P 16(b). If
    the parties agree to entry of such an order, they
    should report it to the court in Form 35.

86
Fed. R. Evid. 502
  • Enacted with the goal to establish a uniform rule
    for handling inadvertent disclosures and of
    protecting parties from startling costs of
    e-discovery.
  • Intent is to protect parties from losing
    privilege or work-product protection because of
    reasonable measures taken to contain the cost of
    electronic discovery.
  • Enacted September 19, 2008

87
Fed. R. Evid. 502(b)
  • (b) Inadvertent disclosure.--When made in a
    federal proceeding or to a federal office or
    agency, the disclosure does not operate as a
    waiver in a federal or state proceeding if
  • (1) the disclosure is inadvertent
  • (2) the holder of the privilege or protection
    took reasonable steps to prevent disclosure and
  • (3) the holder promptly took reasonable steps to
    rectify the error, including (if applicable)
    following Fed.R.Civ.P. 26(b)(5)(B).

88
Fed. R. Evid. 502(d)
  • Federal Court may order that the privilege or
    protection is not waived by disclosure connected
    with the pending litigation
  • In such event the disclosure is also not a waiver
    in any other Federal or State proceeding

89
Fed. R. Evid. 502
  • Court found no waiver where interests of
    justice prevails to protect 800 privileged
    documents produced inadvertently with 78,000
    docs.
  • (Rhoads Industries, Inc. v. Building Materials
    Corp 254 F.R.D. 216 (E.D. Pa. 2008))
  • Court found no waiver plaintiffs took
    reasonable steps to rectify error speed and
    effectiveness of response plaintiff denied final
    review of docs objection immediately lodged with
    opposing counsel and court.
  • (Laethem Equipment Co. v. Deere Co. 2008 BL
    290231 (E.D. Mich. 2008))

90
Fed. R. Evid. 502
  • Alternatively
  • Court found privilege waived where Plaintiff did
    not pursue all reasonable means of preserving the
    confidentiality of docs produced.
  • (ReliOn, Inc. v. Hydra Fuel Cell Corp., 2008 BL
    270238 (D. Or. 2008))
  • Court found no privilege for doc where Plaintiff
    failed to meet its burden to show reasonable
    steps were taken to prevent the disclosure.
  • (Conceptus, Inc. v. Hologic, Inc., No. C
    09-02280 (N.D. Ca. 2010))

91
Fed. R. Evid. 502(d)
  • Before discovery starts it is important to obtain
    a court order with clawback provisions
    specifying realistic terms and conditions for
    recovering inadvertently-produced documents
  • (pursuant to Rule 502(d))

92
Fed. R. Evid. 502
  • Parties stipulated to courts entry of a
    protective order governing inadvertent
    disclosures.
  • Court did not engage in same balancing exercise
    as other cases but did refer to the intent of
    Rule 502 and agreed that remedial actions of
    Plaintiff were sufficiently prompt.
  • (Alcon Manufacturing, Ltd. V. Apotex, Inc., No.
    06-cv-01642 (S.D. Ind. 2008).

93
Fed. R. Evid. 502(e)
  • A non-waiver agreement among the parties does not
    bind non-parties unless it is incorporated into a
    court order. Federal Rule of Evidence 502(e).
  • The Committee Note cites Hopson v. City of
    Baltimore, 232 F.R.D. 228 (D. Md., 2005).
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