** 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:
Now, let’s talk about what doesn’t have to be turned over:
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.
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