As published by The Daily Report
Attorney-client privilege is one of the cornerstones of the attorney-client relationship. Maintaining that privilege is consistent with an attorney’s obligations under the Rules of Professional Conduct and inherent in protecting a client’s interests.
Most attorneys take reasonable precautions to maintain privilege and prevent the disclosure of protected information. Still, sometimes the worst happens, and privileged materials are disclosed unintentionally. In some situations, the disclosure of privileged or confidential material can result in a deemed waiver of the privilege.
Discovery often presents the highest risk of inadvertent disclosure. Given the scope of most discovery, even the most careful, experienced attorney may inadvertently produce privileged materials to the opposing party. While there have been major improvements in the technology that attorneys use to conduct searches of client documents, no system is perfect.
An attorney’s goal is to both protect against and limit the impact of the inadvertent disclosure of privileged materials. There are several ways that attorneys can accomplish that goal by addressing the risk before disclosure happens.
Consider a Formal Clawback Agreement
Inadvertent disclosure of privileged information is commonplace in modern litigation. Though some courts are sympathetic to such developments, many practitioners will try to protect against the harm of inadvertently produced materials by using a written agreement between the parties and a court order pursuant to Federal Rule of Evidence 502.
The Federal Rules of Evidence were amended in 2008 to address the growing concern with inadvertent disclosure as discovery demands and electronic discovery increased. Fed. R. Evid. 502(d) provides that: “A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other federal or state proceeding.” In addition to protecting against waiver, the agreement and order can also identify the parties’ obligations and the steps to take in the event of an inadvertent disclosure. Federal Rules of Civil Procedure 16 and 26 further provide that the scheduling order and discovery plan issued by the court may address the parties’ agreement regarding claims of privileged material, including any agreement under Fed. R. Evid. 502.
Fed. R. Civ. P. 26(b)(5)(B) similarly provides protection for inadvertent disclosures but does not carry the same weight as a court order confirming the parties’ arrangement. A litigant violating a court order tied to Fed. R. Evid. 502(d) will likely face stricter sanctions than a litigant that merely violates a rule of procedure.
In amending Fed. R. Evid. 502(d), the Advisory Committee provided insight on why formal agreements are now a more common practice: “[The amendment] responds to the widespread complaint that litigation costs necessary to protect against the waiver of the attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information.” Because the cost of reviewing thousands of pages is staggering, a 502 agreement and court order can be the most cost-effective route to protect attorney-client privilege.
Because this is a relatively known risk, many litigants will seek a formal agreement and court order before the initial production of documents. It may be too late to reach an agreement after documents have been produced and a mistake has been discovered.
Once an inadvertent disclosure is uncovered, an attorney’s request for a clawback agreement could appear self-serving. The perception may be that the attorney is making concessions in an agreement not because it is in the client’s best interest but because the attorney must undo a mistake.
Many judges are familiar with clawback agreements and will facilitate the timely entering of such an order upon the parties’ request. Some courts are “reluctant to waive the attorney-client privilege,” recognizing that “[i]nadvertent or unintentional disclosures of confidential communications will not destroy the privilege.” Perrigo Co. v. Merial Ltd., No. 1:15-CV-03674-SCJ, 2017 WL 5203054, at *3 (N.D. Ga. Oct. 5, 2017). With courts that are less familiar with Fed. R. Evid. 502(d), however, attorneys should be prepared to explain the issues regarding inadvertent disclosures and to request an order from the court.
Adopt Protocols and Procedures to Prevent Disclosure
Fed. R. Evid. 502 is not all-encompassing. It does not apply to intentional disclosures of privileged materials and only protects inadvertent productions where the producer took reasonable steps to prevent disclosure.
Thus, whether the inadvertent disclosure of privileged materials will constitute a subject matter waiver depends on whether the disclosure was truly inadvertent, whether the privilege holder took reasonable steps to prevent disclosure and whether the holder took reasonable steps to rectify the inadvertent production. Fed R. Evid. 502(b).
There are no hard and fast rules for what qualifies as “reasonable steps.” Some courts find that simply stating that the attorneys conducted a privilege review is not enough. A variety of factors will be relevant to whether the litigant took “reasonable steps” to prevent disclosure, including the scope of discovery, the extent of the disclosure, the amount of time it took to remedy the errors, and the overriding issue of fairness.
A party faced with preparing thousands of documents for production may be tempted to forego the initial privilege review, hoping to rely on the right to “claw back.” This is a risky approach. Even with an agreement in place, a court could find that the party failed to take the “reasonable steps” necessary to protect the privilege.
Although inadvertent disclosure may be a fairly frequent occurrence, attorneys can limit the damage when it happens. The Federal Rules of Evidence, the Federal Rules of Civil Procedure, and local practice provide attorneys with guidance to lessen the impact of inadvertent disclosure in a big way.