June 21, 2019 view from the bench

Inadvertent Production: Can You Claw It Back? Maybe, Maybe Not

The problem can oftgen be solved without too much damage to your case

By Hon. Karen L. Stevenson

Inadvertently producing thousands of nonresponsive electronic communications in discovery can be a lawyer’s worst nightmare. In reality, the problem can often be solved without too much damage to your case. The key is to act swiftly, clearly demonstrate inadvertence, and, if necessary, promptly seek judicial intervention.

Parties recently appeared before me for a hearing about several hundred thousand instant messages accidently produced without any date or search term filters. The producing party argued that the information was disclosed by mistake and demanded return of all the material so that irrelevant information could be redacted. The receiving party resisted, arguing that the vast majority of the information was responsive to pending discovery requests and maintained that the producing party should not be allowed to withdraw the information and make selective redactions.

After hearing their arguments, it was clear that the dispute centered on relevance rather than assertions of privilege. I ordered in camera review of all the disputed material, including the propounding party’s proposed “replacement” documents with redactions.

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