E-discovery: where we've been, where we are, where we're going.

Position:Continuation and completion of Panel Discussion, with footnotes, p. 34-69 - Discussion
 
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JUDGE FACCIOLA:

Be very careful. There came into existence in the Department of Justice something called the "Thompson Rule" after Larry Thompson. For example, you had a corporation client that the Department of Justice had a great case against, so you negotiate a plea. You go in saying, "We want a 5(c)(3) plea. We want you to agree that the range will not be more than X." With that, you plead guilty. The Department of Justice attaches as a condition of that plea a waiver of the attorney-client privilege for everything in your possession. Well, the defense bar had concerns because there are ethical constraints. When Rule 502 was being considered, there was a serious effort to use the Rule to attack what the Department of Justice was doing, but that ran afoul of the legislative process. So, be careful.

There is no such thing as a selective waiver of the attorney-client clause. You cannot go into that antitrust action and say to the Department of Justice, "Here are all of our documents," but then say they are privileged when Professor Teppler sues you in a class action. The Committee Notes to Rule 502 indicate the Committee had no intention to get into that at all. (25) Every circuit in the country, save one, the Eighth Circuit, has said the same thing. You cannot pick and choose among people when you decide to waive the privilege. Once you give it up voluntarily, it is gone as to anyone else.

The 502(d) order protects you in the sense that if you make a mistake, you can claw it back. That order, being a judicial order, is not inconsistent with the Rule, but do not ever think that you can make a wholesale surrender of the attorney-client privilege to the Department of Justice and then not give it to Professor Teppler when he sues you. It is important to keep that distinction in mind.

PROFESSOR TEPPLER:

From an electronic discovery context, one of the true benefits to both parties for Rule 502 is that, in a case where you have an incredible amount of electronic discovery, inevitably something which is either privileged or protected will be disclosed, inadvertently or otherwise. Rule 502(b) lets you fight about it. Whether it was inadvertent will always be a determination made after an expenditure of significant resources and the judge's perception of whether or not the amount of time taken to decide to claw it back was reasonable. Rule 502(d), however, is an unconditional claw-back. The unconditional claw-back means you can get it back no matter what. Whether you're a plaintiff or a defendant, I think it matters not.

One issue that a friend of ours, Aaron Crews, Vice Chair of the E-Discovery Committee, brought up was the timeframe of a 502(d) claw-back. When can it be done?

JUDGE PECK:

Although I have not seen any law on this, it seems to me that a retroactive 502(d) order is problematic. In other words, after producing all your documents, you find out you made a mistake, and instead of going through a 502(b), 26(b)(5) litigation process, you ask the judge to give you a retroactive 502(d) order. I do not think I would sign that.

PROFESSOR TEPPLER:

What about the harder case where you do have a good 502(d) order or there is a sua sponte order made at the onset of discovery?

JUDGE PECK:

It is an interesting question, but I doubt that in the real world it is going to be something that is not used in a deposition which will then bring up the issue. You still have the equity waiver, which is where you let the witness testify until her heart is content about it. It will be very hard to get a claw-back after the witness has said something at trial. I do not know of any case law dealing with this though.

JUDGE FACCIOLA:

Independently of 502(d), in the interpretation of 502(b), there are opinions. I wrote one that says you have to assert it in a timely fashion. In the case I had, they tried to claw back something eleven months after, on the eve of trial. I concluded that was not permitted under 502(b) because they had sat on their rights and for other reasons. (26) The question is whether you can create a 502(d) order that gets you out from under all the case law. I do not know.

It is important to remember the protection given you by 502(a). I am from a jurisdiction that was called the "crown jewels" jurisdiction. It said that you had to protect the privilege like a crown jewel. The reason was that, if you waived it, lost it, or forfeited it, you forfeited that piece of paper and everything else that pertained to the same subject matter. This rule is designed to obliterate that. Now, the worst that can happen is that you lose that document and any other document that makes that one comprehensive. It is the old principle that you cannot use it as a sword and a shield. You cannot hand over the first paragraph of the document that helps you and try to keep back the second. This is a tremendous advantage because, if you go back to my buckets, you see the worst that can happen to you is that you put something in the wrong bucket and you give up that one. You might have to give up two or three more that are in the same bucket, but you do not give up everything in any other bucket. That is crucial.

PROFESSOR TEPPLER:

What percentage of the parties comes to you with a proposed 502(b) or (d) order?

JUDGE FACCIOLA:

It is so bad that we held a seminar at Charleston School of Law. The topic was how to get lawyers to read Rule 502. It is that bad. I have had law firms with me who live in infamy because I know they charge $800 per hour, and they are not aware of 502(d). In some footnotes, I have pointed out some problems I have with that approach to the practice of law. I do not know what the answer to your question is, but it is pitiably small. One of the things I hope to accomplish as a result of that meeting would be a special project within the Sedona Conference to focus on this topic. Professor Capra at Fordham, who had so much to do with the enactment of the Rule, is leading that charge. We are coming out with proposed orders for the bar.

PROFESSOR TEPPLER:

This is all about competency. Think about how your client might feel if you sign off on a 502(b) stipulation and something that you did turns out to be unreasonable. Then your client says to you, "My new counsel says we could have had a 502(d) order and I am going to sue you for malpractice. Oh, and by the way, I am going to report you to the bar because I think you are incompetent." You will have to face this in your practice. Even though there is no provision for that in state evidence rules, there is no reason why you should not be thinking about stipulations like this in state court. At least try to bring it to the judge as a stipulation.

JUDGE PECK:

The only difference is that in a state court proceeding, if you do it by stipulation, you will be protected vis-a-vis the other party in that case. To put it another way, I think that a state judge signing that would not be able to bind other parties, particularly in other states. He may or may not be able to bind another litigation with a different party in the same state, although even that is questionable. However, a New York state court judge's order that is the equivalent of a 502(d) order is probably not going to be that well-received in another state. One can argue about Full Faith and Credit, (27) which might give it some additional weight.

JUDGE FACCIOLA:

Now we will turn to the criminal side.

Well, I suppose I have to make a confession now. I am the judge that signed the order in the Jones case. (28) Not the warrant, but the other one. It was alleged by the government that Antonio Jones and other conspirators were running a high-level cocaine operation out of a night-club in the northeast called Levels. One of the ways of proving that conspiracy was to show constant movement on a daily basis from Levels to a stash house in Maryland.

The police have now become extraordinarily comfortable with the capability of electronic devices transmitting signals that permit you to track them. That can occur, usually in the principle of triangulation. So we know where Jones' car is in relation to two towers, and we know when he leaves one place and arrives at another. What is the first principle of geometry? We know two sides of a triangle, so we know the third. That allows us to position Jones. The government wanted to show this to the jury: "Ladies and gentlemen, it is incomprehensible that Jones made all these trips up to his house and was not aware of the conspiracy." Initially, they put the device under the rear bumper of Jones' car. Then somebody dropped the ball. They kept renewing that warrant and they forgot.

Independent of the thing on Jones' bumper, there was an order under the Stored Communications Act to the service provider for Jones' cell phone, and that was my order. Under the Stored Communications Act, that is on a less than probable cause standard. The question was, independently of the bumper thing, whether Jones' Fourth Amendment rights were violated by tracking him using this device. That question was left open by the Supreme Court.

The opinion for the Court by Justice Scalia said there was trespass as defined in 1789 before the Fourth Amendment was enacted. (29) Justice Sotomayor and Justice Alito said that was all very interesting for carriages in the eighteenth century, but now we have new devices and we have to talk about the concept of privacy. (30)

One of the problems that we have is that the transmittal of information to a third party under the traditional interpretation of the Fourth Amendment has never raised unreasonable search and seizure. The two cases are United States v. Miller (31) and Smith v. Maryland. (32) United States v. Miller dealt with a subpoena to a bank of records. Someone jumped, yelled, and screamed, "Those are my records!" The Court said, "No, if you shared that with the bank, you have no privacy." (33) Smith comes to a similar conclusion.

So now, even though all of...

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