Home

  • Home
    • » e-Newsletters

Tip: Inadvertent production of privileged information and 'claw back' agreements

EHR Connection, August 4, 2008

The e-discovery amendments to the Federal Rules of Civil Procedure, which govern civil proceedings in federal courts, adapt existing rules and concepts to electronically stored information.
 
This is the third installment in a series that explains the so-called e-discovery rules.
Rule 26(b)(5)(B) governs claims of privilege or protection of trial preparation materials. Specifically, the rule prescribes what litigants should do when information subject to a claim of privilege or of protection as trial preparation material is produced in discovery. The rule recognizes that the nature and volume of electronically stored information make privilege issues more difficult to manage.
 
The party making the claim may notify any party that received the privileged or protected information of its claim and the basis for it.
 
After notification:
  • The party that received the information must promptly return, sequester, or destroy the specified information and any copies.
  • The party that received the information may not use or disclose the information until the claim is resolved.
  • The recipient may present the information to the court under seal for determination of the claim.
  • A recipient that discloses information before notification that the information was privileged or protected must take reasonable steps to retrieve it.
  • The producing party must preserve the information until the claim is resolved.
 
This procedural rule doesn’t establish whether inadvertent production of information waives privilege or protection from discovery. Substantive law, which may vary in different jurisdictions, is determinative.
 
Parties should discuss privilege issues and ask the court to include “claw back” agreements in scheduling orders. (“Claw back” agreements allow producing parties to hand over documents without waiving any privilege claims. The producing party expressly retains the right to later designate already produced documents as privileged and require their return or destruction by the other party.)
 
The new rule is not limited to electronically stored information; “claw back” agreements can apply equally to paper documents.
 
This tip is from The Practical Guide to Release of Information published by HCPro, Inc. Check future issues of EHR Connection for more information about the e-discovery rules.

Most Popular