The decision in Mt. Hawley Insurance Company v. Felman Production, Inc. demonstrates the importance of a court-approved stipulation regarding the production of electronically stored information (“ESI”). The court in Mt. Hawley found that the plaintiff had waived the attorney-client privilege and work product doctrine for certain documents because counsel had failed to take “reasonable precautions” to ensure that such otherwise privileged documents were not inadvertently disclosed. Such precautions should have included, for example, sampling its production and not delaying to recover privileged documents after their production was known. Importantly, the parties had not agreed to a non-waiver provision when negotiating the production of ESI, as permitted by Fed. R. Evid. 502 (“Rule 502”). Magistrate Judge Stanley’s decision ultimately was affirmed by Judge Robert C. Chambers in Felman Productions, Inc. v. Industrial Risk Insurers.
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Resources of Interest
- Association of Records Managers & Administrators (ARMA International)
- California E-Discovery Act
- Electronic Discovery Reference Model (EDRM)
- Federal Judicial Center – Manual for Complex Litigation, Fourth
- Federal Rules of Civil Procedure
- Federal Rules of Evidence
- Information Requirements Clearinghouse (IRCH)
- International Legal Technology Association (ILTA)
- Legaltech News
- New Jersey E-Discovery Rules
- The Sedona Conference