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

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.

In Camera Review

When conducting an in camera review of disputed documents, I am usually trying to determine whether parties have appropriately withheld documents on the basis of attorney-client privilege or the attorney work-product doctrine. With a privilege log and a list of attorneys, this is a relatively straightforward analysis.

The situation here, however, was different. Only a few items among the thousands of messages were considered privileged, and the parties had no real dispute about those items. The fight here was about relevance, privacy, and whether the producing party could “claw back” all the information produced to redact information they claimed was not relevant. Therein lies the rub. A producing party cannot just get a “do-over” of their production and redact all the bad stuff.

The only solution was for the court to get involved and conduct an in camera review of the original and proposed substitute production sets. Not the most fun task I’ve had lately, but the problem highlights important discovery issues for federal practitioners in the era of “big data.”

Clawback Agreements: What They Can and Can’t Do

Email once seemed the biggest discovery challenge. An entire e-discovery industry has emerged to help lawyers and their clients solve the problem of collecting, reviewing, and producing large volumes of email. Even in relatively uncomplicated lawsuits, discovery can involve enormous quantities of data that must be reviewed for responsiveness and then produced. But email is just one of many electronic media that may store discoverable information.

These days, personal and professional communication is conducted through a variety of media—text messages, Instagram, SnapChat, Twitter, Slack, Facebook, and Whatsapp. As in the case before me, a single custodian can have tens of thousands of messages, and other potentially relevant data, just on a smartphone. Compounding the problem is the increasing tendency for people to use a single device for both personal and professional matters, making it hard sometimes to separate private from business communications. With so much data stored in so many places, it is almost inevitable that mistakes—sometime big ones—will happen in discovery.

As with most things, however, anticipating the problem is the best strategy. The most common mechanism to address inadvertent disclosure is a “clawback” agreement as part of a stipulated protective order. The protective order covers confidential and sensitive information that may need to be disclosed in the case. A “clawback” provision will set out specific notice procedures to allow the producing party to demand return of mistakenly produced privileged materials. Clawback agreements typically include an explicit non-waiver of attorney-client privilege or work-product protection if such information is inadvertently disclosed.

But the primary purpose of a “clawback” provision is to protect inadvertently produced privileged information. Such agreements do not allow a wholesale return of responsive, non-privileged information based on an alleged accidental overproduction.

Using Rule 502 as the Road map to Redress

The Federal Rules of Evidence also provide express protection for inadvertent disclosure of privileged information. Rule of Evidence 502(b) sets limits on waiver of attorney-client privilege and work-product protection. Under this rule, when information is inadvertently disclosed in a federal proceeding, the disclosure does not operate as a waiver if “(1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including . . . following Federal Rule of Civil Procedure 26(b)(5)(B).”

If you find it necessary to litigate whether an inadvertent production resulted in a privilege waiver, your briefing should lay out the evidence through declarations or affidavits that clearly establish each of the requirements in Rule 502. Identify your data search protocols and review processes. Show the court that you were careful in handling sensitive information and that any misstep was truly inadvertent. From the court’s standpoint, it is essential to establish that the producing party took “reasonable steps” to prevent disclosure and acted promptly to try and correct the error.

These rules, as with clawback agreements, are designed to protect privileged information. Nevertheless, if a large amount of unresponsive information is accidentally produced, these standards, especially demonstrating prompt efforts to notify opposing counsel of the mistake, can be important to persuade the court that the overproduction was inadvertent and warrants relief.

The critical question here is whether the disclosed information is responsive to properly propounded discovery requests. If it is, and no privilege or work-product protection applies, the obligation to produce the information under Rule 34 is clear. Neither a clawback agreement nor Rule 502 will prevent that.

An Ounce of Prevention

Protecting against inadvertent disclosure in the first place is best. Make sure that outside vendors and review teams understand the discovery requests at issue and that they have clear directions on how to identify potentially privileged material. Where possible, segregate privileged and attorney work-product materials before beginning more substantive reviews. Carefully review production sets for quality control before sending them out. Negotiate a clawback agreement in your protective order. When document review is conducted electronically using, for example, predictive coding, still do some eyes-on reviews of a sample data set as an added precaution to spot any inadvertently produced materials.

Act Promptly

Even if you take all these steps, mistakes can still happen. When they do, act promptly. Be candid with the client. These are never easy conversations, but a mistake concealed is a mistake compounded. Discuss the scope of the problem, what occurred, and the implications, if any, for assertions of privilege. Notify the discovery vendor and review its search and review protocols to prevent further errors. Notify opposing counsel. Make a record that clearly lays out why the information at issue is privileged or otherwise nonresponsive. For example, if you contend the production was mistakenly overbroad, show that the information is from individuals who are not relevant custodians in the lawsuit or that the documents produced were well outside the parties’ agreed time frame for relevant disclosures. Finally, if you cannot resolve the situation by agreement with opposing counsel, seek the court’s assistance.