Privileged Docs

8/7/2019 Privileged Docs

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DLI-6112587v21

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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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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(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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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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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

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