Welcome back for the third and final part of our series summarizing and highlighting the most important parts of the new electronic discovery pocket guide for federal judges.  Part One focused on the volume of electronic discovery now being used in judicial proceedings as well as proper procedures for Rule 16 conferences and the scope of electronic discovery under Rule 26.  Part Two focused on cost-shifting, subpoenas and implicated third parties, and form of production.

Finally, Part Three focuses on privilege and waiver, preservation, spoliation, and sanctions.

 Privilege and Waiver Issues

Because of the massive volume of documents that come along with electronic discovery, even very careful and meticulous parties can wind up with the inadvertent disclosure of privileged or protected material during discovery.  Because of this, the Guide points out some helpful techniques and agreements that attorneys can use to avoid this as much as possible.

“Clawback” agreements:

Under this, “the responding party typically reviews the material for privilege or protection before it is produced, but the parties also agree to a procedure for the return of privilege or protected information that is inadvertently produced.”

“Quick Peek” agreements:

Under this, “the responding party provides requested material without a thorough review for privilege or protection, but with the explicit understanding that making it available to the requesting party does not waive any privilege or protection that may apply.  The requesting party must sort through the material and designate under Rule 34 the specific documents it would like formally produced.”  At that point, the responding party can review the specifically requested documents and withhold those that they believe are privileged or protected.

If these agreements are put into a court order, “the litigants are protected against assertions by third parties in parallel or subsequent cases that privilege or work-product protection has been waived through inadvertent disclosure in this litigation.”

While judges have generally used in camera inspection to review assertions of privilege, the guide points out that the volume of ESI may sometimes require judges to use sampling or even special master in more extreme circumstances.

Federal Rule of Evidence 502 to reduce cost and delay:

This rule was adopted in 2008 and “limits the waiver of attorney-client privilege or work-product  protection by inadvertent disclosures.”

The Guide emphasizes that subsection (d) is really the “heart” of the rule.

“It allows the court, on a party’s motion or sua sponte, to enter an order providing that production of materials in connection with a federal proceeding will not waive privilege or work-product protection.”

It is important that the order is enforceable to other state or federal proceedings as well as third parties.  This is why having the agreements between the parties put into a court order is vital to proper privilege protection.  The protections under Rule 502 also apply to state proceedings.

Other important provisions under Rule 502:

(a)   “An inadvertent disclosure of privileged ESI during a federal proceeding can never result in subject matter waiver at either the state or federal level.”

(b)   “Inadvertent disclosure in a federal proceeding does not operate as a waiver in a federal or state proceeding if the holder of the privilege took reasonable steps to prevent the disclosure and promptly took reasonable steps to rectify the error…”

(e) “Underscores the importance of incorporating party agreements on the effect of

disclosure into a court order so that the waiver protection will extent to third

      parties and other cases.”

The Guide notes that Rule 502 helps to further facilitate cooperation and promote helpful “quick peek” agreements to reduce electronic discovery costs.

Finally, Rule 502 gives the court the authority to enter a Rule 502(d) order on its own to remove the risk of waiver through inadvertent production.  This is likely to occur when the parties fail to reach an agreement on their own.

Preserving ESI

Preservation is clearly a major issue due to the large volume and constantly changing nature of ESI, therefore the Guide stresses that judges should discuss preservation issues early on in the case, even if the parties don’t.  There are a number of steps that the Guide suggests judges use at their discretion to make sure that preservation is reasonable and proportional to each particular case.

• Have a person knowledgeable about the party’s information systems describe them to the opposing party and the court
• Interview key employees to determine sources of relevant information
• Make sure that all litigation holds are effectively communicated to employees and others monitoring compliance on an ongoing basis
• Make sure that the data retention policies are in sync with discovery responsibilities
• Manage and monitor document collections actively throughout the case
• Make sure to document all steps taken to ensure the litigation hold and document retention

These preservation requirements can always be incorporated into a clearly and narrowly drawn court order if the parties feel it necessary for full compliance.

Spoliation and Sanctions

Spoliation focuses on “the destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”  Because the case law surround sanctions for spoliation is rapidly expanding, the Guide emphasizes that judges should look to the controlling circuit law and then compare that to the facts of the current case.  Some common considerations are:

• Relevancy of the evidence lost and extent of prejudice
• Degree of culpability (was the destruction due to negligence, gross negligence, intentional, or bad faith?)
• Relationship to records management policy and Rule 37(e) (discussed below)

*Importantly, the Guide notes that “[a] common theme in the case law is that the least severe sanction responsive to the spoliation should be imposed.

Rule 37(e) deals with record-management policies and the fact that many computer systems automatically delete old information to make room for ongoing activities.  Therefore, Rule 37(e) states that “absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of routine, good-faith operation of an electronic information system.”

However, “good faith” may mean that the company has to modify some of its routine computer system features to be in line with discovery obligations.  This rule provides the court with a good deal of flexibility for each specific case.

Conclusion

The Guide ends with details as to where judges and other professionals can find additional guidance on how to properly conduct and deal with electronic discovery issues.  Some of those mentioned are:

• Federal Judicial Center website
• 2006 Amendments to the FRCP along with the associated Advisory Committee notes
• The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production (The Sedona Conference Working Group Series June 2007)
• Managing E-Discovery and ESI: From Pre-Litigation Through Trial (Published in 2011 by the American Bar Association)
• Check your local state and federal courts to see if they have initiative programs or guidelines/protocols for dealing directly with electronic discovery.

The Second Edition of Managing Discovery of Electronic Information: A Pocket Guide for Judges is a great resource to help understand the approaches current judges will take when dealing with extensive electronic discovery.  It is vital that parties take a proactive approach to communicating effectively with the court and opposing counsel to ensure that discovery is correctly conducted and avoid potentially harsh sanctions.

Catherine graduated magna cum laude from Rutgers University, New Brunswick in 2010 with a B.A. in political science.  She will receive her J.D. from Rutgers School of Law – Camden in 2014.  This year she will participate in the competitive Hunter Moot Court.  This past summer she interned with a magistrate judge for the U.S. District Court, District of New Jersey where she contributed to a bench trial opinion, among other notable experiences.