Page 4 - E-Discovery

S4 | MONDAY, OCTOBER 5, 2015 | E-Discovery | NYLJ.COM

Protect Privileged Documents
New Strategies to

From Inadvertent Disclosure

ceeding “if the holder took reasonable steps
to prevent disclosure and also promptly took
reasonable steps to rectify the error.”6 Thus
Rule 502(b) protects against waiver associ-
ated with inadvertent disclosures so long as
parties seek to prevent accidental disclosures
by using reasonable pre-production measures
and react promptly post-production to assert

and preserve privilege. That “middle ground”
essentially codified the approach of the major-
ity of federal courts within New York state,
as well as the approach taken by New York
state courts.
While subsections (a) and (b) operate as
the default rules that apply to discovery dis-
closures when parties have not made other
arrangements to address such waiver issues,

subsection (d) allows parties to request an
order from the court preventing waiver of
privilege as a result of disclosures without
regard to the reasonableness of the measures
taken during the pre-production review or
the promptness of post-production action.
Rule 502(d) permits a federal court to order
that the disclosure of privileged or protected
communications or information does not

waive those protections in the pending case
or in any other federal or state proceeding.
Importantly, the application of Rule 502(d)
does not depend on whether the disclosure
was inadvertent although parties can draft
a Rule 502(d) order to limit the scope of
protection only to inadvertently produced
documents if they so choose. The court order

may also provide for “claw-back” and “quick
peek” arrangements “as a way to avoid the
excessive costs of pre-production review for
privilege and work product.”7 Notably, Peck
has observed that “[t]here is no legitimate OCK
basis for a party (even with little ESI itself) GST
to object to a Rule 502(d) order, in any event, BI
the Court can enter a Rule 502(d) order over
objection or even sua sponte.”8 And finally,

tent disclosure in the first place. But before
Peck wrote that “it is almost malpractice not waiver will extend to an undisclosed com-
we get to that, it is worth discussing Rule
to seek a Rule 502(d) order.”9
BY MARGARET A. DALE munication or information in a federal or
502 of the Federal Rules of Evidence, which
While a Rule 502(d) order can provide AND JOSHUA M. KAY
state proceeding3 only if “(1) the waiver was
was enacted in 2008 to address the escalat-
protection in the case of an inadvertent dis- Iintentional, (2) the disclosed and undisclosed
ing costs of protecting against waiver of the communication or information concern the
closure, there are many practical strategies t is among the worst news a litigator can
to help prevent inadvertent disclosures from hear—privileged documents were pro- attorney-client privilege and the work product same subject matter, and (3) they ought in
occurring in the first place. These strategies duced to the other side by mistake. And, 24
fairness to be considered together.” In short, protection.
include (1) privilege screens, (2) tailored privi- in the world today, where even relatively small the rule limits subject matter waiver only to Subsections (a) and (b) of the Rule already
lege reviews and (3) document production cases routinely involve massive amounts of those “unusual situations in which fairness have made a significant impact in bringing

quality control.
electronically stored data, it happens a lot. As requires a further disclosure of related, pro- about more cost-effective privilege review.
Magistrate Judge Andrew J. Peck commented tected information in order to prevent a selec- The fear of broad subject matter waiver due
Privilege Screens
recently, “[i]n virtually every production, tive and misleading presentation of evidence to inadvertent disclosure of privileged or pro-
no matter what search method is used or to the disadvantage of the adversary.”5
tected information—which was often the rea-
One of the first things that can be done to how carefully a manual privilege review is Subsection (b) of the rule was enacted to son that lawyers put eyes on every page to be
protect against inadvertent disclosures is to conducted, some privileged material will be deal with the conflict in the case law con- produced—has been eliminated. Rule 502(a)
segregate potentially privileged documents inadvertently produced.”1
cerning whether inadvertent disclosure of limits subject matter waiver to instances of
from the rest of the document population. By Fortunately, there are a number of strate- attorney-client privileged or work-product intentional disclosure of privileged or pro-

doing this, the issue of privilege can be sub- gies available to help protect against inadver-
protected information constitutes a waiver. tected material that creates unfairness to the
stantially put aside while initial fact develop- The rule adopted the middle ground and pro- adversary. According to subsection (a), in the
ment is the focus of discovery. Workflows for vides that inadvertent disclosure of privileged context of a voluntary disclosure that is made
handling privileged documents can be more MARGARET DALE is a partner in the litigation depart- or protected information in a federal proceed- in a federal proceeding (or to a federal office
thoroughly developed later on.
ment, and JOSHUA M. KAY is e-discovery project ing (or to a federal officer or agency) does not or agency) that waives the attorney-client
To preliminarily identify potentially privi-
manager, at Proskauer Rose.
constitute a waiver in a federal or state pro-
privilege or work-product protection, that