Privilege review is a persistent problem for attorneys reviewing voluminous electronic information as part of the discovery process. Apart from the large cost associated with combing through data for privileged information, the risk of inadvertent disclosure is unavoidable. Such disclosure can trigger a waiver of the attorney-client privilege and attorney work-product protection.
The magnitude of this problem is so big that it has its own rule in the Federal Rules of Evidence (FRE), Rule 502, and in the Federal Rules of Civil Procedure, Rule 26(b). Both rules were enacted in response to the burdens of privilege review and the dangers of inadvertent disclosure in e-discovery. The rules provide guidance regarding the trigger and scope of waiver by inadvertent disclosure, as well as a procedure to follow when inadvertent disclosure occurs.
Nevertheless, the court held that the defendants did not take reasonable measures, after excusing many of the instances in which the defendants failed to detect the privileged documents in the production. The court explained that the multiple problems with the production aggregated to create an impression of carelessness that was impossible to overcome.
However, the court did identify certain reasonable measures, including: