1. Advertorial > column
Preventing inadvertent d isclosu re
/ennifer Freenan
ByJennifer Freeman and Kelly Kubacki the plaintiffs to re-file the motion to compel. delay and measures taken to rectify disclosure;
L reventing inadvertent disclosure of priv- The court advised the parties to consider Rule and (5) whether overriding interests of justice
lJ,,"r"o oJrr"n., nas rong Deen a pro.ry 5o2 in future discussions, noting the rule was would be served. The Rhoades court found the
I for corporate counsel. However, the pro- enacted to reduce the costs of exhaustive priv- first four factors to be in favor of the defendants
liferation oftechnology has led to a rapid increase ilege reviews of ESl." and the fifth factor to favor the plaintiff, and
in the amounts of electronically stored informa- This is good news for companies. The finan- held there was no waiver of privilege of the re-
tion and increased the probability that privileged cially troubling times have led corporations to maining documents.
documents will be accidently produced. tighten the legal budget belt and one of the most This case supports the idea that when pre-
To combat this growing phenomenon, Federal expensive aspects of e-dlscovery is document re- cautionary reasonableness is disputed, courts
Rule of Evidence 5o2 was signed into law in view. The potential to conduct this phase more may look to interests of justice and other factors
zoo8. cost-efficiently may allow companies some relief to determine whether privilege is waived. There-
Fed. R Evid. 5o¿ titled,'Attorney-Client Priv- in this crucial stage of the litigation continuum. fore, it is important for companies to maintain
ilege and Work Producg Limitations on Waiver," detailed records regarding what actions were tak-
governs the disclosure of information that is pro- Predictability en and when. lf an inadvertent disclosure were to
tected by privilege. Another goal of Rule 5oz is to creete a federal occur/ possessing this information could aid in
Rule 5oz provides waiver protection when standard to govern privilege waiver. The rule reg- making an artument against waiver under Rule
parties take "reasonable steps"to prevent the ulates: the scope of waiver; when inadvertent 5oz and subsequent reasonableness disputes.
inadvertent disclosure of privi leged information. disclosure justifies waiver; and the effect of pro- Courts' application of this rule is creating a
The application of this rule also makes determin- tectlve orders. more uniform standard in determining whether
ations and orders on privilege binding on state Federal courts now analyze privilege waiver warver rs aPProPnate.
courts and, in some cases, state court decisions under Rule 5ozþ), which provides that disclo- Despite the many protections Rule 5oz may
binding on federal courts. The two main objec- sure is not a waiver if: (r) the disclosure was provide, the rule does not erase the reality that
tives of Rule 5oz's enactment are the reduction inadverten! (2.) reasonable steps were taken to inadvertent disclosure provides the opponent
of costs and predictability. prevent d¡sclosure and þ) reasonable steps were with potentially case-damaging information.
taken to rectify the error. The rule is also intended Preparing for e-discovery and employing smart
Reducing Costs to focus on the disclosure of privileged infor- technologies throughout the process can help
According to the Judicial Conference Rules mat¡on not discovery abuses. See Laethem corporate counsel prevent inadvertent disclo-
-
Committeg the primary purpose of Rule 5oz is to Equipment Co. v. Deer and Co., 2oo8 WL 4997932 sures, in turn decreasing reliance on a rule that
control the rising costs of e-discovery, particu- (E.D. Mich. Nov. zr, zooS). may not provide absolute protect¡on in circum-
larly during document review. The rule narrows Courts may still look to other factors outside stances where privileged documents are acci-
the circumstances under which subject matter of Rule 5oz in determining whether a waiver of dently produced. I
waiver can occur, in addition to prohibiting the privilege is appropriate. ln Rhoads lndus. lnc. u Bldg.
automatic waiver that formally occurred in cer- Materials Corp. of America, zoo8 WL 49t6oz6 Jennifer Freeman is a senior legal consultant for
tain jurisdictions. (E.D. Pa. Nov. r4 zooS), the Eastern D¡strict of Kroll Ontrack. Based in Chicagq she can be reached
ln Spieker v. Quest Cherokee,zooSWL 47586o4 Pennsylvania held that the traditional five-factor at jfreeman@krollontrack.con. Kelly Kubacki is lead
(D. Kan. Oct. 30, zooS), the defendant objected common law test to determine waiver should be law clerk for Kroll Ontrack. Based in Minneopolis,
to the plaintiffs' request for production of ESl, applied in cases where the reasonableness re- she can be reached at kkubackiqkrollontrack.com.
claiming the costs would equal S375,ooo, while mains disputed.
the plaintiffs' claim allegedly amounted to These five factors are: (r) reasonableness of
Sroo,ooo or less. Although the court denied the precautions taken to prevenq (z) number of in-
plaintiffs' motion, it left open the possibility for advertent disclosures; (3) extent of disclosure; (4)
August 2oo9 Cicago 57