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.
This article focuses on the portion of FRE 502 stipulating that in order to avoid waiver of privilege by inadvertent disclosure, the producing party must show that it took reasonable measures to prevent the disclosure and that it acted reasonably promptly in notifying the other party of the mistake. Given the stakes in providing an adversary with attorney-client communications of legal advice or counsel's analysis of the case, each case interpreting the rule’s reasonableness criteria is of great import to litigators. The recently decided opinion in D'Onofrio v. Borough of Seaside Park, et al., is such a case.
D'Onofrio is instructive as to how many things can go wrong in a big document review and the prophylactic steps courts will deem sufficient to avoid a waiver of privilege when an inadvertent disclosure occurs. In D'Onofrio, associates reviewed the documents for responsiveness, while a partner reviewed the documents for privilege. This is an expensive option for the client because it includes many partner hours spent reviewing documents and it shows a healthy respect for the risks of producing privileged material. As the case demonstrates, however, this precaution is not a perfect solution.
The partner conducting the privilege review provided his detailed notes about the documents to a clerical employee with instructions to separate and withhold the documents noted as privileged from production. The nonprivileged documents were to be saved on a disk and produced. Unfortunately, the clerical employee did not complete her assignment properly, and hundreds of privileged documents were included on the disk. She later realized this mistake, and the defendants recalled the disk. Some of the privileged information was removed, but other privileged information still escaped notice, and the disk was produced again.
The plaintiff advised that the new disk was unreadable, so the defendants conducted a quality control audit of the disk. They also created privilege logs for the production. However, they failed to notice that the number of privilege entries on the log was significantly smaller than the number of documents originally designated for withholding as privileged.
After an ostensibly corrected disk was produced, the plaintiff claimed that the documents on the disk were out of order. Counsel again reviewed the disk and confirmed that the plaintiff was right. In the process of fixing the disk, the defendants realized that privileged documents had been produced. These were added to the privilege log and withheld from the reproduced disk.
Subsequently, the plaintiff filed a brief, attaching privileged documents as exhibits. The defendants notified the other parties and argued that their production should not cause a waiver because it was inadvertent. They asserted that they took reasonable measures to avoid the disclosure, as required by FRE 502 to avoid a waiver. As support for this claim, they pointed to 250 hours of attorney time spent on document review.
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:
- A multi-attorney review taking approximately 250 hours of attorney time
- A partner review for the specific purpose of identifying privileged material
- Detailed notes by the partner as to her designations of privilege
The court called these measures “more than adequate.” In addition, the court did not fault counsel for delegating the task of separating the documents in preparing the disk for production to a clerical employee, stating, “This is exactly the type of task that could reasonably be assigned to clerical staff.”
However, ultimately the court held that counsel failed to take reasonable measures to rectify the mistaken disclosure, opining that the repeated problems should have tipped off counsel that more thorough checking was needed long before the privileged documents appeared as exhibits to the plaintiff’s brief. While FRE 502 does not require post-production review for mistakes, it does require follow-up on obvious indications of inadvertent production. Once a party is aware that the production is faulty, it should “promptly re-assess its procedures and re-check its production.
The D’Onofrio opinion provides some suggestions for conducting privilege reviews and protecting against the disclosure of privileged information. The court commended the multi-tier attorney review, with associates conducting a first pass and partners conducting a second review for privilege, as well as the substantial time invested in the review. In addition, the court lauded the care taken to create detailed notes designating privilege and explaining the rationale for each designation.
Perhaps the most important lesson of D’Onofrio is that counsel should check for inadvertent disclosures when a series of problems with a production arises. While such problems would obviously include the discovery of privileged information disclosure, this is not the only piece of the puzzle that should spur counsel to action. When technical glitches and/or clerical errors occur, counsel should be skeptical of the overall integrity of the production. While a recheck does not necessarily require a page-by-page re-review, counsel should devise a defensible method of quality control for inadvertent production.
