One case that vividly demonstrates this risk is Marrero Hernandez v. Esso Standard Oil Co., in which the defendant asserted privilege as to electronically stored information produced a year earlier. The assertion came three days after the plaintiff filed a counterclaim attaching hard copies of certain documents, leading the defendant to realize what had occurred. The defendant explained that the production was the result of an “errant mouse click” that merged two electronic files, one containing privileged information and one not. This single mouse click occurred despite a lengthy and thorough privilege review. The court was unsympathetic. “If parties opt to use technological resources to store privilege information, they should also provide the necessary protection for precisely that information.”

As Marrero Hernandez illustrates, judges have been slow to acknowledge the additional problems that electronic discovery presents for privilege review. This results, in part, from the fact that under the substantive privilege law, the costs of a mistake are potentially so high: waiver not only of the inadvertently disclosed information but also of the subject matter. The consequences of a mistake are also variable because of forum differences in what constitutes a waiver. Different jurisdictions apply different rules, ranging from a strict approach that generally finds waiver if there is inadvertent production to a lenient approach. A middle-ground approach requires the court to assess whether the conduct that led to the production is excusable or whether it waived the privilege. The high standards courts have imposed on counsel and clients to protect against privilege waiver may not adequately take into account the distinctive problems of identifying and segregating privileged electronically stored information. Courts must understand that while electronic search techniques improve efficiency and effectiveness in reviewing vast amounts of information and promise to provide even greater efficiencies in the future, electronic searching is not yet a reliable substitute for human review. And courts must understand that with human review, the volume and characteristics of electronically stored information inescapably lead to greater risks of inadvertent disclosure.

As courts learn more about the difficulties of reviewing electronically stored information for privilege, judicial attitudes may become more forgiving. The amended rules may help that process. Courts are citing Rules 26(f) and 26(b)(5)(B) and the Committee Notes in acknowledging the difficulties of effectively reviewing vast amounts of electronically stored information for privilege, even with significant effort. The Civil Rules cannot, however, change substantive privilege law, including the law of privilege waiver, without an affirmative act of Congress. Under current law, depending on the jurisdiction, even if the parties agree to various protocols under which disclosure will not waive a privilege or protection, and the court includes their agreement in an order, neither the agreement nor order assure that the agreement will bind third parties. And although amended Rule 26(b)(5) provides a procedure for asserting claims of privilege or protection after production when the parties have not reached an agreement through the meet-and-confer process, the new rule does not resolve the substantive issue of whether the production has waived a belatedly asserted privilege or work-product protection claim. The risk of waiver and of disclosure will lead some parties, particularly those who are frequently sued, to continue to insist on extensive, time-consuming, and costly preproduction privilege reviews, even with a nonwaiver agreement in place between the parties.

The amended rules recognize this caution and the reason for it and provide that a court may not require a party to enter into a clawback, quick peek, or similar protocol, even if it would make discovery faster and less expensive. Rule 26(f) and the Notes make clear that a court cannot order such a privilege protocol unless the parties agree.

As a result of the risks under, and variability of, the substantive privilege law, judges’ historical reluctance to approve nonwaiver agreements may continue. One court recently stated that parties

In a very thoughtful analysis, the court in that case, Hopson v. Mayor of Baltimore, stated that judges “called upon to ‘bless’ the production procedures agreed upon by counsel with a court order should independently satisfy themselves that full privilege review reasonably cannot be accomplished within the amount of time court allow[ed] for the production.” The court also should satisfy itself that the procedures agreed upon by counsel regarding privilege production are in fact reasonable and that more could not be accomplished within the production period given the scope of electronic records production permitted by the court.

Amended Rule 16 and the corresponding provisions of Rule 26(f) do not, on their face, require such judicial second-guessing of parties’ agreements to adopt a less expensive, less burdensome, less time-consuming, and more realistic approach to privilege review. But as long as litigants cannot ensure that their nonwaiver agreements are enforceable as to third parties and the waiver consequence of producing privileged or protected information is unpredictable, these rule amendments may not be a sufficient basis for protocols intended to avoid extensive preproduction privilege reviews in cases that would otherwise benefit from such arrangements.

There is a proposal that would dovetail with the e-discovery amendments and help realize their potential benefits. In August 2006, the Standing Committee on the Rules of Practice and Procedure and the Advisory Committee on the Federal Rules of Evidence published for comment a proposed rule amendment that would, among other things, provide that if a court enters an order incorporating the parties’ agreement that disclosures of privileged or protected information would not effect a waiver, the order would bind third parties. Additionally, the proposed rule sets the standard for when an inadvertent disclosure operates as a waiver, by adopting the middle-ground approach identified earlier: if the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures, once it knew or should have known of the disclosure, to rectify it, the disclosure does not constitute a waiver. The proposed rule would also provide that privilege waiver by disclosure generally would not extend to all the information concerning the same subject matter but only the information disclosed. This proposed rule, which would require an affirmative act by Congress because it affects an evidentiary privilege, would help make agreements for production without a complete privilege review in advance a more attractive proposition.

In the meantime, if litigants have analyzed the risks of a protocol for producing information without a full-blown preproduction privilege review and have decided that those risks are outweighed by savings in time, expense, and burden, courts should generally be willing to accept that judgment. Although judges cannot require such agreements of unwilling litigants, judges can and often should explore with the litigants what protocols might be acceptable to reduce the costs and time by avoiding a complete review and the preparation of a complete privilege log before any production occurs. Such efforts are yet another way in which conscientious judges are likely to be more involved in managing e-discovery. And in undertaking such efforts, judges will again face the delicate balance between the effective management necessary to ensure that parties meet their discovery obligations and the need to avoid standards that are unrealistically demanding or unforgiving.

Lee H. Rosenthal is a United States District Judge for the Southern District of Texas. Rebecca Bolin, Yale Law School ‘06, provided helpful assistance and suggestions.

Preferred Citation: Lee H. Rosenthal, A Few Thoughts on Electronic Discovery After December 1, 2006, 116 Yale L.J. Pocket Part 167 (2006), http://yalelawjournal.org/forum/privilege-review.

A Few Thoughts on Electronic Discovery After December 1, 2006

• Installment 1: An Overview of the E-Discovery Rules Amendments
• Installment 2: Meeting and Conferring
• Installment 3: Not Reasonably Accessible Information and Allocating Discovery Costs
• Installment 4: Privilege Review
• Installment 5: Metadata and Issues Relating to the Form of Production
• Installment 6: Sanctions
• Installment 7: Conclusion