The Brave New World of E-discovery - Part Ii - September 2007 - the Civil Litigator
| Publication year | 2007 |
| Pages | 43 |
2007, September, Pg. 43. The Brave New World of E-Discovery - Part II - September 2007 - The Civil Litigator
September 2007
Vol. 36, No. 9 [Page 43]
The Civil Litigator
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
Article Editors:
Don Kelso, Denver, of Holme Roberts & Owen LLP - (303) 861-7000, donald.kelso@hro.com; Eric Bentley, Colorado Springs, of Holme Roberts & Owen LLP - (719) 473-3800, eric.bentley@hro.com
About the Authors:
Richard P. Barkley, Denver, is a shareholder in Brownstein Hyatt Farber Schreck's Litigation Group, where he specializes in appellate and complex civil litigation - rbarkley@bhfs.com. Jeanine M. Anderson, Denver, is a shareholder in Brownstein Hyatt Farber Schreck's Commercial Litigation and Employment Groups - janderson@bhfs.com.
This is the second of a two-part article examining the obligations of parties and their counsel to preserve and manage electronic documents under evolving case law (both federal and state) and the new federal rules on e-discovery. Part I addressed the obligations imposed prior to litigation and at the start of the case. Part II addresses the obligations imposed in the later stages of litigation.
The recently amended Federal Rules of Civil Procedure governing e-discovery, as well as the rapid evolution of case law in state and federal courts in Colorado and around the country, have dramatically changed the landscape of discovery for the civil practitioner. This two-part article addresses several significant issues raised by the rule changes and evolving case law.
Part I, which was published in the August 2007 issue of The Colorado Lawyer,(fn1) discussed the preservation and management of electronic documents (e-documents or ESI) prior to the official commencement of discovery. Part II addresses three specific problems that arise with the production of ESI in response to discovery or disclosure obligations: (1) the handling and production of e-documents that are protected from disclosure by a privilege or immunity; (2) inaccessible documents and the cost of their production; and (3) penalties or sanctions for failing to preserve or produce e-documents.
Documents That Are Protected From Disclosure
As noted in Part I of this article, one of the byproducts of electronic technology has been an exponential growth in the volume, as well as a change in the form (from paper to electronic) of documents created by businesses and governments. In the context of discovery, the increased volume and the electronic form of documents can, as a practical matter, preclude parties with large amounts of ESI from reviewing each individual e-document. Accordingly, parties routinely use electronic searches - most commonly computerized queries for specified key names, terms, or phrases - instead of a review of individual documents. Although these electronic searches may not be as accurate as a document-by-document review, either in identifying responsive documents or in excluding nonresponsive documents, electronic searches are considered an appropriate alternative when the cost and time involved make individual examination impractical.
The same practical problems may arise when reviewing documents for attorney-client privilege, work product immunity, or any other privilege or immunity. A document-by-document "privilege review" can be inordinately expensive and time consuming in a document-intensive case,(fn2) but an electronic search is likely to result in errors that lead to the production of privileged documents.(fn3) The judicial system often is intolerant when it comes to the mistaken production of documents that are protected from disclosure by a privilege or immunity.(fn4) As a result, the inadvertent production of protected documents may be held to be a waiver of the privilege or immunity.
Moreover, to compound the problem, any such waiver may be extensive, because a waiver of the attorney-client privilege as to one document may constitute a waiver as to all attorney-client privileged communications on the same subject.(fn5) Accordingly, when producing e-documents, a client may be forced to choose between incurring the very substantial cost of conducting an individual review of documents, or performing a less expensive computerized review that may result in a waiver of a privilege or immunity.(fn6)
Amendments to Federal Rules of Civil Procedure
The December 2006 Amendments (Amendments) to the Federal Rules of Civil Procedure (Rules) establish procedures for addressing the inadvertent disclosure of protected e-documents. Rule 26(b)(5)(b), as amended, provides that if a protected document inadvertently is produced in discovery, the producing party may notify the receiving party that the document is privileged or immune. After obtaining notice, the document cannot be used or disclosed by the recipient, who must take "reasonable steps" to retrieve previously disseminated copies of the document until the claim of protection is resolved.(fn7)
The Advisory Committee Notes to Rule 26(b)(5), however, make clear that the amendments are purely procedural and do "not address whether the privilege or protection that is asserted after production was waived by the production."(fn8) Instead, the determination of whether a waiver has occurred is determined based on applicable state or federal law.(fn9) Thus, if under the governing law a privilege or immunity has been waived by the inadvertent production, the procedures set forth in Rule 26(b)(5)(B) will not provide any substantive relief.
The Amendments suggest that the parties resolve issues surrounding the production of privileged material through voluntary "non-waiver" agreements. The Amendments to Rule 26(f) expressly obligate parties to discuss and develop a proposed discovery plan that indicates their respective views on
any issue relating to claims of privilege or of protection as trial-preparation material, including - if the parties agree on a procedure to assert such claims after production - whether to ask the court to include their agreement in an order.(fn10)
Similarly, the Amendments to Rule 16 authorize a court to include in a scheduling order "any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production. . . ."(fn11)
Quick Peek Agreements and Clawback Agreements
As the Advisory Committee Notes to Rule 26(f) explain, parties can attempt to minimize the costs and delays of a privilege review by "agreeing to protocols that minimize the risk of waiver."(fn12) The Advisory Committee Notes address two types of "protocols" for addressing privilege issues. Under the first, which is sometimes known as a "quick peek" agreement, the responding party provides requested material to the requesting party "for initial examination."(fn13) The requesting party reviews the material and "designates the documents it wishes to have actually produced."(fn14) The responding party then screens the designated documents for formal production and asserts any applicable privilege claims.(fn15)
The second protocol addressed by the Advisory Committee Notes is the so-called "clawback agreement." Under such an agreement, the responding party conducts an electronic privilege review and withholds all privileged documents it has located. Thereafter, if the parties discover that protected documents inadvertently have been produced, the responding party is entitled to their return - the party can "claw back" the protected documents by identifying them and requesting their return.(fn16)
Despite the Advisory Committee's endorsement of voluntary agreements such as quick peek and clawback agreements,(fn17) courts have recognized substantial problems with them. Recognition of these problems predates the Amendments.(fn18) In light of the Advisory Committee's insistence that the Amendments do not change the substantive law, such judicial hesitation may remain.(fn19)
Such concerns likely will be strongest when privilege waiver occurs outside the context of inadvertent production - that is, the production of protected documents due to mistake or error during a privilege review. Some agreements contemplated by the Advisory Committee Notes and by courts(fn20) involve the production of documents without any privilege review. Such production, of course, would not be inadvertent. Thus, even those jurisdictions that protect against (or allow parties to enter into agreements that protect against) waiver arising from the inadvertent production of documents may be unwilling to preserve the privilege when a party has made no effort to prevent the production of protected documents.
Moreover, even if quick peek and clawback agreements are effective as to the parties to the agreement, they likely will not be effective with respect to parties in related litigation who have not entered into the nonwaiver agreement. Thus, where the same privileged documents are likely to be relevant to multiple cases - for example, in pattern litigation, mass tort litigation, and class action cases - quick peek agreements, clawback agreements, and other types of nonwaiver agreements likely will not prevent waiver of a privilege or immunity as to third parties. Under the "selective waiver" doctrine, some courts (but not the Tenth Circuit or Colorado courts) have recognized that no waiver of a privilege or immunity as to third parties occurs when disclosure of protected documents is compelled.(fn21) Because a quick peek or clawback agreement is one into which the parties entered voluntarily, however, it is unlikely that even those...
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