Tagged: Privilege Waiver

Unnecessarily Opening Doors — the Southern District of California Provides an Important Reminder of the Value of FRE 502(d) Clawback Agreements

Highlighting numerous preventable mistakes that resulted in the unintentional waiver of attorney-client privilege, a recent Southern District of California decision reinforces the importance of comprehensive clawback agreements specifically pursuant to FRE 502(d) and (e) to prevent analysis of waiver under either FRCP 26 or the common law waiver standard embodied in FRE 502(b). This blog has previously addressed the interplay between Rule 502 and parties’ clawback agreements and recently discussed the limitations of FRE 502(d) and the inability of litigants to use it to compel production of potentially privileged information without a privilege review. In Orthopaedic Hospital v. DJO Global, Inc. and DJO Finance, LLC, the District Court found a waiver of the attorney-client privilege with respect to a privileged document introduced at deposition and the testimony elicited in connection with the privileged document due to the producing party’s failure to “promptly” rectify the inadvertent production under FRE 502(b). The court refused to find a broader subject matter waiver as a result of the introduction of this privileged document. Critically, the parties had proceeded with discovery without having negotiated, entered into, and sought Court approval of a clawback order under FRE 502(d), instead proceeding under a Rule 26 protective order that incorporated the common law clawback standard of FRE 502(b). As we have discussed in...

Inadvertently Produced Privileged Material May Generally Be Used for Purpose of Challenging Assertion of Privilege

A New York federal court has recently held that inadvertently produced privileged documents may be used by the receiving party for the limited purpose of challenging the claim of privilege to the extent that the receiving party became aware of the contents of those documents prior to the assertion of the privilege over those documents. In re Keurig Green Mt. Single Serve Coffee Antitrust Litig. In that case, the parties had entered into a stipulated protective order with a Federal Rule of Evidence 502(d) clawback provision, but the parties relied on two different provisions of the same order to support their arguments concerning whether the privileged document could be relied upon in challenging the claim of privilege. The order stated that “[i]f a party has inadvertently or mistakenly produced Privileged Material, and if the party makes a written request for the return, … the receiving party will also make no use of the information contained in the Privileged Material … regardless of whether the receiving party disputes the claim of privilege.” However, the order also stated that “[t]he receiving party may not use the Privileged Material … for any purpose whatsoever other than moving the Court for an order compelling production of the Privileged Material…” The Court relied on two prior decisions, both authored by...

Inadvertent Production Deemed Waiver of Privilege Where Counsel Was Reckless and Clawback Agreement Was Unclear

The Southern District of Ohio recently clarified the relationship between FRE 502 and clawback agreements in its finding that a party’s counsel was “completely reckless” in producing the same privileged documents on two separate occasions. In Irth Sols., LLC v. Windstream Commc’ns LLC, the parties entered into a clawback agreement that was memorialized in three bullet points in an email exchange between counsel. The agreement provided that an inadvertent disclosure (a term not defined in the agreement) would not waive the attorney-client privilege. The parties further agreed that, “based on the scale of the case,” it was unnecessary to ask the court to enter an order under Rule 502(d), whereby the court may order “that the privilege or protection is not waived by disclosure connected with the litigation pending before the court.” Defendant then produced documents, 43 of which defendant later discovered were privileged. Defense counsel argued the reviewing defense attorney failed to designate the documents privileged because he was not familiar with the name of defendant’s in-house counsel and the second level review neither caught this error nor flagged search words such as “legal.” Upon discovering the error, defense counsel requested a clawback of the 43 documents. Plaintiff’s counsel sequestered the 43 documents but challenged the clawback agreement’s application, arguing the disclosure resulted from...

Think Before You Send: Communications to an Attorney Using Work Email May Not Be Protected Under the Attorney-Client Privilege

Generally, a confidential email sent to one’s personal attorney is protected under the attorney-client privilege. But what if the communication is sent using a business email account? Will a corporate policy entitling the company to access “all communications” sent on work computers undermine the privilege? Followers of this blog will recall, among other posts, our detailed recap of the extensive discussion of this issue at our Annual E-Discovery Conference in the wake of the New Jersey Supreme Court’s decision in Stengart v. Loving Care Agency, Inc., upholding the privilege where the employee used a company computer to communicate with her attorney via a personal password-protected internet based e-mail account, and sanctioning the employer’s attorneys for failing to turn over the protected communications. Readers may also recall our discussion of US v. Hamilton, where the United States Court of Appeals for the Fourth Circuit held that a husband waived the marital communications privilege when he sent messages from his work email account to his wife, but took no steps to protect their sanctity. Since those decisions, courts nationwide have continued to wrestle with these issues. Most recently, a Delaware Court held an employee waived the attorney client privilege where he used his work email account to email his lawyer with knowledge of the company’s policy establishing its right to access all communications on work computers.

Use of Work Computer Results in Waiver of Marital Communication Privilege

In U.S. v. Hamilton, the United States Court of Appeals for the Fourth Circuit found that a husband who sent messages from his work email account to his wife, yet took no steps to protect the sanctity of those emails, waived the marital communications privilege, thus subjecting the emails to disclosure during discovery. This case serves as an important reminder that employees do not necessarily enjoy an expectation of privacy in the emails they send from their work accounts or while using their employers’ computers.

Not So Fast: 95 Million Reasons to Carefully Select and Limit Search Terms

It has become commonplace for parties engaged in electronic discovery to discuss and agree upon “keyword” searches in an effort to limit the overall scope of discovery. A recent decision in the District of New Jersey, I-Med Pharma, Inc. v. Biomatrix, Civ. No. 03-3677 (DRD), (D.N.J. 2011), demonstrates the pitfalls that arise when the parties too eagerly agree to conduct a search for electronically stored information using an overly broad set of keywords. The case also demonstrates a court’s willingness to engage in proportionality analysis to cabin broad discovery.

Ineffective Privilege Review Leads to Inadvertent Waiver in Rolling Document Production

Recently, a federal court in Illinois held in Thorncreek Apartments III, LLC v. Village or Park Forest that a defendant waived the attorney-client privilege when it inadvertently produced 159 documents that it later claimed were privileged. The defendant’s failure to take reasonably adequate measures to prevent such disclosure serves as a lesson for all attorneys, especially those who manage large, rolling document productions with the help of a vendor.

Judge Grimm Authors Tutorial on Federal Rule of Evidence 502

Magistrate Judge Paul W. Grimm, a renowned authority on e-discovery, recently published an article in the Richmond Journal of Law and Technology discussing Federal Rule of Evidence 502. Judge Grimm’s article, “Federal Rule of Evidence 502: Has It Lived Up To Its Potential?,” provides a comprehensive analysis of Rule 502, offers frank criticism of court decisions interpreting the rule and outlines do’s and don’ts for practitioners.

Think Before You “Data Dump” or Privileges Could Be Waived

When a party voluntarily dumps data on its adversary without first conducting a meaningful privilege review, that party may be deemed to have waived any applicable privileges, particularly where it fails to timely argue that a privilege review would be too costly. That is the lesson of In re Fontainebleau Las Vegas Contract Litig., 2011 U.S. Dist. LEXIS 4105 (S.D. Fla. Jan. 7, 2011), a cautionary tale of the dangers of data dumping. After repeatedly failing to meet court-ordered production deadlines, in response to a subpoena, Fontainebleau Resorts, LLC (“FBR”) essentially dumped on the requesting parties (the “Term Lenders”) three servers containing approximately 800 GB of data–without first conducting any meaningful privilege review. Consequently, in its January 7th decision, the court granted the Term Lenders’ motion seeking a declaration that FBR waived its privilege claims. Had FBR litigated this matter differently, it might have protected its privileged information.

California Court Holds Employee’s E-mails To Counsel From Work Computer Are Not Privileged

Despite recent decisions from courts of last resort on State and federal levels, some jurisdictions are not extending full protection to otherwise privileged communications made through work-issued computers and PDAs. We last wrote on this issue after the New Jersey Supreme Court held that an employee did not waive the attorney-client privilege when using a company computer to communicate with her attorney via a personal password-protected e-mail account. Stengart v. Loving Care Agency. A short time later, in Quon v. Arch Wireless, the United States Supreme Court determined that the search of an employee’s text messages on a work-issued pager was reasonable and did not violate the employee’s Fourth Amendment rights. In the wake of these holdings, courts in other jurisdictions continue to make their own path through this new area of law. In Holmes v. Petrovich Development Company, LLC, the latest in the line of cases, the California Court of Appeals held that an employee’s e-mail communications with her attorney from her work computer did not constitute “‘a confidential communication between client and lawyer'” under Section 954 of the California Evidence Code.