Litigation 101 for eDiscovery Tech Professionals: What Gets Turned over in Discovery?
December 05, 2012
** This blog series is intended to introduce new eDiscovery professionals to the litigation process and litigation terminology. Click here, here, here, here, here, here and here to go to the first seven posts in the series.**
In last week’s post we began talking about discovery, and we covered the mechanisms by which parties exchange information during discovery. Typically when I talk to technical people about litigation, two questions come up at this point:
- What is a party really obligated to turn over? The short answer is, everything that is responsive to the request for production and that can be found using efforts agreed upon by the parties, except for materials that are privileged (see discussion below).
- Do people withhold / destroy damaging documents? Usually not. It’s illegal, the penalties are severe (people have gone to prison for doing this), and it’s far too easy to get caught.
Now, let’s talk about what doesn’t have to be turned over:
- Privileged communication: This includes information that is exchanged between two people that have a relationship in which their private communications are protected by law. This includes communication between an attorney and his/her client, communication between spouses, communication between doctors and patients, and communications with clergy. It’s important to note that there must have been an expectation of privacy for a specific communication to be privileged. If an attorney communicates with a client in public and a third party is present, there is not an expectation of privacy and privilege may not apply.
- Attorney work product: Written materials by an attorney done in preparation for a trial or pre-trial activities are protected and do not have to be produced to the other side.
What happens if a privileged document slips through the cracks and is accidentally turned over? Privilege may be waived. This is becoming a bigger problem in litigation because of the huge volumes of materials that are turned over. It’s burdensome and time-consuming to review collections for privileged documents before production, and inevitably, some are slipping through the cracks. There is a mechanism that can be employed to lessen the consequences of inadvertent production:
Clawback agreement: The parties can enter into an agreement before production that permits them to get back privileged documents that have inadvertently been turned over, without waiving privilege. The agreements typically describe the circumstances under which this is permitted and the rules for “clawing back” the privileged documents.
A clawback agreement is not a license for attorneys to get sloppy with a privilege review. There is still a serious consequence of inadvertent production: you can’t ‘un-ring’ a bell. If a privileged document is accidentally turned over, perhaps privilege isn’t waived (which means the other side cannot use the document), but the other side has seen the document and, as a consequence, has knowledge about something that the producing party preferred to keep secret. And, in some cases, privilege can be waived whether or not there is a clawback agreement as these four cases show.
We’ll cover more discovery topics in coming posts. Please let us know if there are specific litigation topics that you’d like to see covered in this blog series.Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.