The Federal Rules of Civil Procedure (FRCP) anticipate that the volume of electronically stored information (ESI) produced during the discovery phase of litigation will far exceed the volume of hard copy information. As the volume of information produced increases, so does the risk of inadvertent disclosure of privileged information and the time and cost associated with trying to prevent such inadvertent disclosure.
To prevent discovery from becoming bogged down with privilege issues, the FRCP incorporates a “clawback” provision into FRCP 26(b)(5)(B). FRCP 26(b)(5)(B) works in conjunction with FRCP 26(f) to require that the parties discuss the inadvertent disclosure of privileged ESI in preparing their discovery plan. Under FRCP 16(b), the court has the power to include in a court order any agreements the parties reach with regard to discovery and inadvertent disclosure. The court may then consider those orders when determining whether waiver has occurred.
So what is a company to do? As an initial matter, as discovery ESI is located, the company locating the information should mark it prominently with a “privileged” or “confidential” legend. If you are sued, it is critical to assign a corporate liaison to sign off, in writing, that all ESI has been reviewed for privileged information. Discuss privilege issues with your attorney, prepare a privilege log of all privileged ESI and get instructions from your attorney, in writing, as to how you have agreed to handle privileged ESI. Revisit the issue after your attorney has finalized a discovery plan with the opposing party and at regular intervals during litigation.
In the event you determine that you may have inadvertently disclosed privileged ESI, discuss the situation with your attorney immediately. If you and your attorney determine there is an issue, you must notify the other side in writing and request the court review the matter. During the time the court is reviewing the matter, the party receiving the privileged ESI must sequester, destroy or return the ESI at issue and try to retrieve it from third parties. It is absolutely critical that you make any “clawback” claim as soon as possible, as delay can be a determining factor in the court’s decision as to whether to allow the clawback or not.