Why Aren’t You Using FRE 502(d)

FRE 502(d)In 2008, Federal Rule of Evidence 502(d) was signed and enacted into law by Congress to minimize the cost of civil litigation, particularly in matters with large volumes of ESI. The intent of the rule is to allow parties to produce large volumes of documents while reducing the risk of waiving privilege in a federal proceeding. The rule states:

Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.

Rule 502(d) gives heightened protection against waiver in instances where privileged information is both knowingly and/or unknowingly disclosed. In the case of the latter, the rule eliminates the need to demonstrate that the disclosing party took reasonable steps to prevent the disclosure, which is part of the requirements of Rule 502(b) under its “inadvertent production” standard. Accordingly, 502(d) eliminates costly and time-consuming potential motion practice regarding waivers of privilege where the issue of whether the production was inadvertent is disputed. Moreover, that protection carries over to any other proceeding in federal or state court even with different parties. Litigants should consider it a safety net protecting against waiver of privilege.

FRE 502(d) is not often used

Despite the inherent strengths of Rule 502(d), most litigants continue to ignore it.  U.S. Magistrate Judge Andrew Peck posits that perhaps the most obvious explanation for Rule 502(d)’s infrequent use is that lawyers simply aren’t aware of its provisions (see Judge Peck’s recent insights on 502(d)).

Alternatively, what might be causing some reticence among attorneys is a concern that pursuing a 502(d) order could give the court a green light to require a massive document production without conducting a thorough privilege review. Litigants, however, can protect themselves from such a scenario by crafting language within the order that outlines the scope of the privilege review and associated rights of the parties.

To address the aforementioned concerns, Judge Peck provides a simple model on his website that can be tailored to suit your specific matter:

  1. The production of privileged or work-product protected documents, electronically stored information (“ESI”) or information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in this case or in any other federal or state proceeding. This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d).
  2. Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI or information (including metadata) for relevance, responsiveness and/or segregation of privileged and/or protected information before production.

Even in the unlikely event that a court compels a party to produce documents without conducting a careful privilege review, Judge Peck is of the opinion that it would be improper to do so, stating that a court should not infringe upon attorneys’ rights to protect their clients’ privileged documents for the sake of speed or cost.

Quick considerations when drafting a 502(d) order

1. Avoid confusion regarding what 502 standard should be applied.

Rule 502(b) requires an analysis that the producing party took reasonable steps to prevent disclosure — a standard not required by Rule 502(d). Given that, parties should draft language explicitly stating that an analysis considering Rule 502(b) is inapplicable (see paragraph 1 of Judge Peck’s model).

2. Be careful with the use of the term “inadvertent.”

In fact, avoid the use of the term “inadvertent” entirely. Use of the term only clouds the intent of the 502(d) order and puts the parties at risk of disputing what the term actually means.

Litigants should refer to the unconditional claw-back language of Rule 502(d). The point of drafting a 502(d) order is to avoid a Rule 502(b) “reasonable steps” analysis and to prevent prolonged and costly disputes regarding waiver of privilege.

3. 502(d) provides insurance even with purposeful disclosure.

Parties may wish to purposefully disclose privileged documents or data in a current proceeding, but may be concerned about a waiver or privilege in a future proceeding. The protection of a Rule 502(d) can carry over to any other proceeding in federal or state court with different parties, thus protecting parties even where there was a purposeful disclosure of privileged documents.

Consider using a Rule 502(d) order. It is an incredibly useful tool to protect against waiver in instances where privileged information is both knowingly and/or unknowingly disclosed.

It’s the End of Authentication (of ESI) as We Know It

Amendments to Federal Rules of Evidence 803 and 902 will become effective on Dec. 1 and will “govern in all proceedings thereafter commenced and, insofar as just, all proceedings then pending.”

We previously analyzed the changes to the hearsay exception for ancient documents (FRE 803(16)), and here focus on amendments concerning the self-authentication of evidence generated by electronic processes or systems (FRE 902(13)) and self-authentication of data copied from an electronic device, storage medium or file (902(14)). In short:

  • The intent of these amendments is to streamline authentication of electronic evidence through pretrial certification processes intended to minimize the need for testimony by a foundation witness.
  • A party seeking to take advantage of these procedures must ensure that its processes for preservation, collection, processing and production of electronically stored information (ESI), and for tracking the chain of custody of such information, enables the party to make the certification envisioned by the amendments (a certification that may post-date those actions by months or even years in complex litigation).
  • These amendments do not prevent the parties from stipulating to authenticity, even without a certification. Nevertheless, they may incentivize parties to more aggressively challenge authenticity where it is apparent that an opponent is unable to make the pretrial certification envisioned by the amendments.
  • These amendments focus on authenticity only, and a proponent of the evidence must still be prepared to overcome other hurdles to admissibility, including hearsay and relevance.

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Cost Shifting Ordered Due to Inadequate Meet and Confer

Discovery is not about gamesmanship, and parties are expected to engage in meaningful negotiation about the terms of discovery agreements. That is the message from Judge A. Kathleen Tomlinson of the Eastern District of New York, who recently ordered cost shifting when parties failed to meaningfully meet and confer about their electronically stored information (ESI) agreement. The decision is remarkable, because it orders cost shifting in a case where there is no claim that the discovery sought is unreasonable in scope or unnecessary to resolve the claims in the dispute. The court did not analyze and weigh the proportionality factors in Rule 26, which might have resulted in a more nuanced ruling. While serving as a valuable reminder of the importance of meet and confers in the discovery process, the decision sets a potentially dangerous precedent that parties who object to the expense of discovery that is completely reasonable in scope and necessary to resolve matters in dispute can still shift the cost of that discovery to their adversaries.

In Bailey v. Brookdale University Hospital, a single-plaintiff employment litigation, Mr. Bailey claimed he should not have to bear the burdensome cost of production despite a negotiated, executed, and ordered ESI agreement between the parties. Judge Tomlinson concluded that cost shifting was appropriate in this case, because the ESI agreement was not meaningfully negotiated, resulting in an agreement that was inappropriate for the litigation. Continue Reading

E-Discovery Standards and the 26(g) Signature That Drives the Market

We begin with three quick questions:

1. Which legal practice has created and fueled a multibillion-dollar support industry?

2. Which legal practice employs incomprehensible acronyms that require a glossary apart from Black’s Law Dictionary?

3. Which legal practice motivates debates between non-lawyer computer scientists and academics?

If you guessed e-discovery (perhaps because you’re reading an e-discovery post with an e-discovery title on an e-discovery blog), you’re right. And because of the spend associated with this practice, standards might be expected, assuming consensus and agreement within the e-discovery space.

But agreement is especially difficult in e-discovery because of this choice of standards direction: Should they be technology-based in an environment where technologies change rapidly? Or should standards focus on the process used by attorneys who must certify their discovery responses under Federal Rule of Civil Procedure 26(g), but who are less-than-embracing of advice from nonpractitioners, scholars and academics, and litigation support professionals? In the absence of consensus, standards have thus far languished, and there is currently no clear-cut direction in the market.

There is still merit in considering standards for e-discovery as a practice, despite the requirement for attorney sign-off, because e-discovery is a highly technical practice that is only becoming more so. The value of this consideration (and other topics) are addressed in Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner, where the authors contributing chapters confronted the challenge of modernity and the understanding that the present-day “legal profession lives and breathes in a world of electronically stored information.”

While we have examined technology assisted review (TAR) and defense of process in the context of specific cases before, in our Perspectives chapter, “A Modest Proposal for Preventing e-Discovery Standards from Being a Burden to Practitioners, Clients, the Courts, or Common Sense,” we took a holistic look at the possible standardization of present and future e-discovery practice in all cases. We also discussed whether technical standards would even be applicable, provided some additional guidance for practitioners within this space, and looked to the future of e-discovery and practice more generally. This discussion began with the present-day “patchwork of ‘best practices’ that has emerged from think tanks, regional judicial pilot projects, and individual judges,” leading us to consider whether standardization was even “possible in the context of procedural rules administered by courts relating to known and not-yet-knowable technological challenges.” In working through this question, we examined standard-setting bodies and their work product, parsing out the reasonable from the unreasonable, and offered a proposal of our own.

Again, standard-setting bodies are not without merit in the e-discovery space, and at the very least may provide a worthwhile checklist for those practitioners signing on the 26(g) line. In general, and as we discuss in the chapter, new e-discovery practitioners and veterans alike should be familiar with the following:

After our review and explanation of these and related resources, we offered a checklist set of 10 standard practices, bookended by two “new” considerations for long-time zealous advocates, cooperation and transparency. In particular, we asserted that cooperation was not simply “refraining from abusive practices, but also developing, testing, and agreeing on the nature and scope of information sought (to the extent consistent with clients’ interests).” We also noted that “true cooperation [might] require the use of true expert cooperation, where both parties have experts representing their interests.” For transparency, we considered recent case law that noted that practitioners should be prepared to provide full disclosure about the technology used, the process and the methodology, including those “documents used to ‘train’ the computer” in instances of TAR.

In sum, our proposed checklist focuses on the 26(g) practitioner, but incorporates principles more common to those branches of science and practice that rely on working in concert toward a common goal—in this case, the discovery practices required under the rest of the federal rules.

Attorneys’ Professional Duty of Care When Representing Clients in Litigation or an Investigation Requires Higher Technological Literacy

The legal practice and technology go hand in hand, and a solid understanding of technology is crucial to satisfy the ethical duties owed by attorneys to their clients. In an opinion published on Feb. 21, the New York County Lawyers Association Professional Ethics Committee (the “Committee”) stressed that the legal practice needs to keep up with technology and that the duty of competence is evolving as technology advances and integrates with the practice. Therefore, attorneys should possess a higher level of technological literacy in order to provide skillful representation and adequate service to their clients.

The notion by which an attorney is required to familiarize herself with clients’ IT systems and data retention practices isn’t new; it is embedded within the Federal Rules of Civil Procedure, various local rules and rules of professional conduct, and in numerous court decisions (such as the notable Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)); however, the Committee’s decision takes it one step further to determine that the duty of competence does not stop there. Attorneys need to be versed in clients’ IT environments, but also adhere to a higher standard of competence and possess “sufficient understanding of issues relating to securing, transmitting, and producing electronically stored information” in order to protect clients’ confidential information from cybersecurity risk. Continue Reading

It Lurks in the Last Place You Look – Preventing (or at Least Mitigating) Employee Data Leakage

Data 483120645_smOutside hacking attacks grab headlines. Data breach concerns cause sleepless nights within the C-suite of many organizations. And ransomware strikes fear into companies without sound backup practices and true Information Governance programs. But a different (and sometimes more sinister) problem often goes undetected within the four walls of those same organizations’ firewalls and barriers to entry. It’s not radon. It’s the issue of data compromise or “leakage,” perpetrated by employees, to the tune of billions of dollars every year.

In Technological and Information Governance Approaches to Data Loss and Leakage Mitigation, a recent article published in Computer Science and Information Technology as part of the proceedings for the 12th International Conference on Cyber Warfare and Security (ICCWS 2017), the authors addressed this issue. In particular, the article examined the insider (and sometimes existential) threat employees pose when those employees simply access and utilize systems they need in order to do their jobs. Sadly, much like customer service jobs that would be perfect but for the customers, employees present a “conundrum where [those] employees are both the potential creators as well as the potential solution(s) to an insider threat.” That is, when an employee single-mindedly pursues a business task or objective, he or she may employ a data transfer mechanism that operates as a “bit player[], used only for a one-off data transfer or movement according to a fleeting purpose,” that also subverts the organization’s data protection strategy in ways not contemplated by IT professionals, who are geared up to fight a battle against foreign agents and outside threat vectors. Continue Reading

Advocacy in E-Discovery More Important Than Ever

Close up Magnifying Glass Leaning on Wooden TableIn this day and age, advocacy starts with competence in ESI issues. An effective advocate must be able to assess e-discovery needs and issues, implement appropriate preservation procedures, advise clients on options for storage and preservation, understand the client’s ESI systems and storage, and handle the management, review and production of ESI in litigation. But this knowledge by itself is not enough. Only with an understanding of how the amendments to the Federal Rules account for issues pertaining to ESI can the attorney meaningfully advocate for the client.

Relevance and Proportionality Defines the Scope of Discovery

One of the major changes to the rules is the deletion of the phrase “reasonably calculated to lead to the discovery of admissible evidence” in Rule 26. That language was previously used to describe the test for relevance, but it was often incorrectly applied to define the scope of discovery to the point where it swallows any limitation on the scope of discovery. The new test now emphasizes proportionality, and the relevant case law informing the scope of discovery going forward will increasingly be that which applies the new rules. See In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016) (“[J]ust as a statute could effectively overrule cases applying a former legal standard, the 2015 amendment effectively abrogated cases applying a prior version of Rule 26(b)(1)”).

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Judge Peck to Attorneys – Wake Up and Read Rule 34

Know The Rules Businessman Holding in Hand New technologiesIt has been more than a year since the update to the Federal Rules of Civil Procedure, and Judge Peck is losing patience with litigators who do not follow the “no-longer-new 2015 Amendments.” Recently, in Fischer v. Forrest, he took attorneys to task for not following the updates to Rule 34, and detailed three basic things responses to discovery requests must do.

First, responses must state grounds for objections with specificity: “General objections should rarely be used after Dec. 1, 2015, unless the objection applies to each document request (e.g., objecting to produce privileged material).” General objections on “the basis of non-relevance of the ‘subject matter of this litigation’” are unnecessary given the updated language of Rule 26(b)(1), which makes subject matter discovery impermissible. Furthermore, be aware of outdated language that exposes ignorance of the plain language of the new rules. For example, objecting to a request on the basis that is not “likely to lead to the discovery of relevant, admissible evidence” is also unnecessary given the updated language of Rule 26(b)(1), which removed “reasonably calculated” as a “definition for the scope of permissible discovery.” Finally, avoid boilerplate language. Nothing is “overbroad and burdensome” without reasons to support why it is overbroad and burdensome. Continue Reading

Want to Get Primed for TAR? The Sedona Conference Has You Covered

technology_tablet_000079371467_LargeThe Sedona Conference recently announced the release of its Technology Assisted Review (TAR) Case Law Primer. While this final version of the primer will be published in the Summer 2017 Sedona Conference Journal, the final/prepublication edition can be downloaded at no charge here.

Why is this primer needed? As noted by The Sedona Conference’s deputy executive director, Ken Withers, TAR’s “widespread application – and the realization of its potential benefits – has been impeded by uncertainty about its acceptance by the courts as a legitimate alternative to costly, time-consuming manual review of documents in discovery.”

The primer traces the development of the case law to the present, discussing those first cases that tested the TAR waters. It also discusses the disputed issues garnering judicial attention, including whether TAR can be required, the use of keyword culling before application of machine learning and the transparency required when TAR tools are deployed. Continue Reading

If the Scope of Discovery Changed and No One Paid Attention, Did the Scope of Discovery Change?

Litigation_shutterstock_126537545The scope of discovery may be more limited than you think. The Cole’s Wexford opinion provides a thorough dissection of the history and past iterations of Rule 26 and a clear explanation of the status of the current rule as amended in 2015.

Judge Joy Flowers Conti, chief district judge of the U.S. District Court in the Western District of Pennsylvania, addressed the question of relevancy under amended Federal Rule of Civil Procedure 26 in this September 2016 decision involving a discovery dispute between Cole’s Wexford Hotel and Highmark (Cole’s Wexford Hotel v. Highmark, 2016 WL 5025751 (W.D. Pa. Sept. 20, 2016). In her decision, Judge Conti criticized the continued post-amendment reliance on the broad relevancy benchmark of Oppenheimer, writing that “discovery requests are not relevant simply because there is a possibility that the information may be relevant to the general subject matter of the action.”

In this discovery dispute, Cole’s Wexford had sought discovery concerning base insurance rates approved by the Pennsylvania Insurance Department and also the rates charged by the defendant, Highmark. The special master recommended that the court deny these requests, “because Cole’s Wexford did not satisfy its burden to show that the information it seeks is relevant under Federal Rule of Civil Procedure 26.” Continue Reading

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