Given the proliferation of electronic data and the vast amount of discoverable information in large matters, the inadvertent disclosure of privileged information is inevitable. This is true whether documents are coded by humans or through predictive coding technology.
However, there are ways to mitigate the risks associated with inadvertent privilege disclosure. The following strategies will help a discovery team respond quickly and efficiently when privileged information is mistakenly produced.
- Establish a clawback agreement. A clawback is an agreement between the parties, typically in the form of an agreed court order, in which the parties agree that, within some parameters, the inadvertent production of privileged information does not constitute a privilege waiver. There is typically a provision stating the parties will promptly return or destroy documents identified as privileged. In the absence of a clawback agreement, the parties rely solely on the court's application of Federal Rule of Evidence 502 as it relates to privilege disclosure. Federal Rule of Evidence 502 codified the rule that if counsel takes reasonable precautions against inadvertent disclosure, then they can request the return of the documents, either by the process set forth in the rules or by agreement.
- Implement defensible processes. When attempting to claw back documents, either under the terms of a clawback agreement or Federal Rule of Evidence 502, it is important to demonstrate that the production was, in fact, inadvertent. Being able to demonstrate that the team responsible for the production was operating according to best practices will go a long way toward proving the production was inadvertent.
- Follow an inadvertent disclosure response plan. Upon realizing that privilege has been produced, time is of the essence. Immediately inform individuals managing the case of the privilege disclosure. Inform the opposing party as outlined in the clawback agreement. If a clawback agreement does not exist, be mindful that a delay in notifying the opposing party may result in a privilege waiver under Federal Rule of Evidence 502.
There is no substitute for implementing and following best practices to ensure that privileged material is properly withheld during document productions. However, should a privilege disclosure occur, a timely and effective response will help mitigate associated risks. Put simply, prudence dictates preparedness.