Our last blog discussed a state business litigation case out of North Carolina where the defendants accidentally sent over an ESI production rife with data protected by attorney-client privilege. The defendants acted recklessly in their ESI production and failed to take even minimal steps to guard against inadvertent disclosure; therefore, the court found their actions to constitute a waiver of privilege.
Federal Rule of Civil Procedure 502 states that inadvertent disclosure will not constitute a waiver of privilege if:
- The disclosure is inadvertent;
- The holder of the privilege or protection took reasonable steps to prevent disclosure; and
- The holder promptly took reasonable steps to rectify the error, including (if applicable) following FRCP 26(b)(5)(B).
The following is a breakdown of Rule 26(b)(5)(B) regarding claiming privilege after inadvertent production:
- The party making the claim of privilege must notify the receiving party;
- The receiving party must promptly return, sequester, or destroy the information;
- The receiving party must not use or disclose the information;
- The receiving party must take reasonable steps to retrieve the information if they disclosed it before being notified;
- The receiving party must promptly present the information to court under seal;
- The producing party must preserve the information until the claim is resolved.
After reviewing the federal rules, it is clear that this procedure fits squarely with the reasoning of the North Carolina court decision in Blythe v. Bell, 2012 NCBC 42. If plaintiffs discover privileged data within the defense production of ESI, they must take steps to protect and sequester the information and bring the issue to court. If the defendants failed to take reasonable steps to protect against disclosure, as was the case in Blythe, the court may find a waiver is applicable and plaintiffs will be able to keep the information.
As ESI productions become larger and more complicated, the risk of defendants producing protected information becomes exponentially greater. By engaging in eDiscovery strategic planning from the inception of the case, plaintiffs can be well prepared for any ESI challenge and ensure their own actions fall on the right side of the law. Call us at 888-313-4457 for more information.