The three most common discovery problems are inadvertently producing privileged information; failing to produce responsive documents; and, the scariest, failing to preserve responsive material. This article focuses on what to do when they occur.
Inadvertent production of privileged information. Errors in document discovery are inevitable. Given the volume of documents reviewed and produced and the fact that all reviewers are fallible, a few privileged documents will leak through.
Seek a 502(d) order. Prior to production, you should enter into 502(d) orders to minimize the risk of waiver from the inadvertent production of privileged documents. A 502(d) order allows courts and parties to establish rules on what constitutes waiver of privilege in the case. Inadvertent waiver in one court will not result in waiver in a subsequent litigation, as 502(d) orders have a binding effect on state and federal courts.
You must have a claw back provision in the 502(d) order that allows retrieval of the inadvertently produced documents. With a broad claw back provision, you may have the right to claw back your documents no matter what the circumstances giving rise to their production were.
A 502(d) order does not eliminate the need for review. If privileged or private documents are disclosed, the opposing party may read your sensitive documents before you are able to claw them back.
The 502(d) order should reserve the right for parties to claw back a document that has been disclosed or used. This will protect you in the event you do not discover that you disclosed a privileged document until opposing counsel uses the document in a deposition.
Your protective order should detail what should happen after you notify opposing counsel about the inadvertent production. For example, would you like opposing counsel to automatically return or delete the information? The 502(d) order also should address how you plan to resolve the dispute that is likely to arise if opposing counsel does not agree that a document is privileged.
What should you do? After discovering you have produced a privileged document, do a quick assessment and inform your client about the inadvertent production and let them know their options. When you discover an inadvertent disclosure, it is not enough to claw back the document. You need to assess what caused the disclosure to ensure there is not a more systematic issue at work. Begin by investigating how the documents were inadvertently produced. Is this a minor error or an indication of a bigger problem with your review process?
Next, determine how many documents actually fell through the cracks. If the number of documents you produced inadvertently is low compared with your overall production, the court may be more understanding. Courts have found no waiver where fewer than 200 documents out of tens of thousands were produced.
You must take reasonable steps to rectify the error as soon as you discover the inadvertent disclosure. Notify opposing counsel as soon as you reasonably can, specifying in detail the documents that were inadvertently produced. Then ask for the return or destruction of the documents. Courts will expect you to act promptly after discovery of your error. A reasonable amount of time is within several days or weeks, and generally not several months.
Protect private and personal data. Inadvertently produced documents that contain personally identifiable information (PII) are also a concern. Discuss the topic of sensitive personal information early in the meet-and-confer process, and suggest that the parties redact or encrypt PII. In addition, seek a protective order that details data security standards and breach notification requirements with which the parties will comply.
Failing to produce relevant information to which the opponent was entitled. Identify what was missed, why those documents were missed, and whether there are other missing documents. If there are responsive documents, you may still have time to produce them within the discovery period. It is important to keep in mind that late production sanctions pale in comparison with the likely hefty sanctions for improperly withholding documents that should have been produced.
If you properly produced all documents in a timely manner, you should still consider whether you need to supplement your document production prior to the close of discovery. Before you provide a supplemental production, double-check that the documents are relevant and whether the documents might be favorable to your case or were actually requested by the opposing party.
Talk to opposing counsel. If you know you are going to supplement late and out of sequence, talk with opposing counsel and give them an idea of what you’re producing and when you’re producing it. Being transparent with opposing counsel now will be helpful down the road. You may need to make changes to the discovery schedule to feasibly produce your unanticipated production, and you will want to secure opposing counsel’s agreement to any requests you must make to the court. But be strategically transparent; give opposing counsel enough information that they will understand why things are late, but not so much information that you will be bombarded with unnecessary discovery or discovery requests.
Produce if necessary. If you did fail to produce documents that you should have produced, produce the documents as soon as you reasonably can. Under Federal Rule of Civil Procedure 26(g), you had to represent that your prior discovery production was complete and correct. Now that you are aware of missing documents, your representation of completeness may no longer be true, and you have to remedy that. Missing documents does not mean that the opposing party can dictate how you need to conduct your discovery moving forward or investigate your discovery process. Reasonableness, not perfection, is the standard for evaluating discovery, and missing some documents does not mean that your discovery process was unreasonable.
Discovering a failure to preserve. Although losing documents may seem like the end of the world, perfect preservation is not required. Assess what was lost. Ask yourself how you even know that documents have been lost. Identify whose documents were lost and whether they came from a key individual in the litigation or someone more tertiary. You must then determine why documents were lost.
First, you must figure out whether the documents were in fact deleted. In today’s digital environment, it is actually pretty difficult to truly delete all copies of a document. Consider whether you can restore the information from an archive or legacy system, another custodian, or from third parties. As long as the lost documents can be restored or replaced, you have not failed in your duty to preserve under Federal Rule of Civil Procedure 37(e). Regardless of whether you can recover the lost documents, determine whether the documents are relevant to the litigation.
You will also need to determine when the documents were lost. If the documents were destroyed before your client reasonably anticipated litigation, then there was no duty to keep the documents and therefore no spoliation of evidence. Courts generally find that your duty to preserve is triggered when litigation is reasonably foreseeable. This will occur as soon as a party is on notice that future litigation is likely, such as when a party decides to bring a lawsuit, receives a preservation notice, or files a complaint.
At some point after discovering that documents have been lost, you will need to tell opposing counsel that discoverable documents were deleted. Be mindful that if you know that your client intentionally deleted documents but your client does not want to disclose those facts to opposing counsel, you have to consider your ethical and legal obligations. In this situation, you may find yourself caught between your duty of confidentiality to your client and your duty of candor to the tribunal and opposing counsel.
ABA Litigation Section
This article is an abridged and edited version of one that originally appeared on page 18 of Litigation, Summer 2018 (44:4).
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