Reviewing Document Production for Privilege�part Ii
| Publication year | 2013 |
| Pages | 67 |
| Citation | Vol. 42 No. 9 Pg. 67 |
By Robyn L. Wille.
Young Lawyers Division
The CBA Young Lawyers Division Department comprises practical articles and essays of interest especially to novice attorneys. Suggestions for article topics or final draft manuscripts may be sent to Coordinating Editor Christopher D. Bryan—(970) 947-1936, cbryan@garfieldhecht.com.
About the Author
Robyn L. Wille practices law in the Natural Resources and Environment Section at the Colorado Attorney General’s Office. She has been a member of the Florida bar since 2005 and a Colorado bar member since 2009— robyn.wille@state.co.us.
Part I of this article addressed the mechanics of reviewing documents for potential privileges and preparing a privilege log. This Part II takes a closer look at what happens if a privileged document is inadvertently produced by the r eviewing attorney, and the steps necessary to claw back that document.
In cases involving a large number of documents, it is possible—even likely—that a privileged document will be unintentionally produced to the opposing party. Many times, lead counsel will have help in the document review process from paralegals or other staff, or from contract attorneys hired on a temporary basis to assist with the document review project. Lead counsel often is unable to review each and every document to be produced. Further, given the truncated time frame for producing initial disclosures under the Colorado Civil Access Pilot Project Rules, constraints of time and money [1] make it even more likely that lead counsel has to rely on others to timely complete the document review and prepare the privilege log.
If an unintentional production of a privileged document occurs, the primary concern of the producing party should be to avoid a waiver of the attorney-client privilege. Under Colorado law, only the client holds the attorney-client privilege; therefore, only the client may waive it.[2] If a privileged document has been produced, however, the opposing party may assert that the production of this document has resulted in a waiver of the attorney-client privilege for all documents concerning the same subject matter. The party seeking to establish a waiver of the attorney-client privilege will bear the burden of establishing that waiver.[3]
There are a number of ways attorneys can attempt to recover the privileged document and avoid such a waiver. For example, attorneys can propose that the parties enter into a protective order at the outset of discovery that would specifically provide for the rights and remedies of parties faced with a claim of inadvertent production of a privileged document.[4] This article addresses the analysis undertaken by Colorado courts—both state and federal—to determine whether the inadvertent production of a privileged document constitutes a waiver of the attorney-client privilege. The article first looks at Federal Rule of Evidence (FRE) 502, which specifically addresses unintentional production h of a privileged document. There is no corresponding Colorado Rule of ' Evidence, and FRE 502 has not been expressly adopted by the Colorado Supreme Court; however, the analysis of a Colorado state court is guided by the analysis under the federal rule.[5]
The Federal Approach
FRE 502(b) provides that
[the] disclosure [of a privileged document] does not operate as a waiver ... if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).[6]
Each of these elements is discussed below.
Disclosure Must Be Inadvertent
FRE 502(b)(1) requires that a disclosure be inadvertent to claw back the disclosure. The party claiming that the disclosure was inadvertent bears the burden of establishing all the elements of FRE 502(b).[7]
It will not necessarily be sufficient to allege that the disclosure was unintended, and therefore inadvertent. At least one court has noted that because "[e]very inadvertent disclosure is an unintentional disclosure . . . [e]stablishing that a disclosure was unintentional . . . does not go far in establishing the absence of waiver."[8] The determination of what constitutes an "inadvertent" production is not fully settled; however, existing case law does provide some guidance for attorneys.
Disclosure of a document included on a privilege log is not inadvertent.
At least two courts, including a Colorado federal court, have held that under FRE 502, disclosure of a document identified on a privilege log is not inadvertent.[9] Attorneys therefore should make an effort to review the documents to be produced to ensure that no documents identified on the privilege log are included in the set to be produced. Courts addressing this issue have not discussed the effect, if any, of a claw back agreement on unintentional disclosure of a document identified on a privilege log.
Disclosure is not inadvertent because the producing party later changes its mind as to the privileged nature of the document.
Although courts often combine the analysis of inadvertence with evaluation of whether reasonable steps were taken to avoid disclosure, a finding of inadvertence can be considered as an independent threshold question. Where a party discloses a privileged document but later rethinks the wisdom of the disclosure, the initial disclosure is not inadvertent.[10]
In Francisco v. Verizon South, Inc., 11 Verizon asserted privilege and sought to claw back under FRE 502 the document it had marked "confidential" pursuant to a protective order, alleging inadvertent disclosure. The court held that Verizon’s production of the document was not inadvertent, finding that it "intentionally, and after apparent analysis, determined that the notes at issue were to be marked confidential, redacted, and produced."[12] The court noted that only after a second review did Verizon realize the document might be privileged.[13] The court held that under these circumstances, the disclosure was not inadvertent.[14] The court then found a waiver of the attorney–client privilege.[15]
Not many courts have confronted this particular set of facts; however, those that have almost universally have determined that such a disclosure is not inadvertent.[16] Attorneys should therefore pay extra attention to those documents containing redactions or those with confidential designations before production.
Attorneys must take reasonable steps to prevent disclosure and promptly take steps to rectify disclosure.
Under FRE 502(b)(2) and (3), the party claiming that the disclosure is inadvertent bears the burden of proving both that it took reasonable steps to prevent the disclosure and that it promptly sought to rectify the disclosure.[17] Case law pre-dating FRE 502 still applies to these two elements of FRE 502(b).[18]
It is difficult to identify exactly what steps would be considered reasonable precautions to prevent inadvertent disclosure, but some examples of what can constitute reasonable steps include the following:
1. Counsel used advanced analytical software applications...
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