Utilizing the Rules and Leveraging Technology to Protect Privilege in E-Discovery

Created on October 9, 2012

It is universally accepted that e-discovery has transformed the way lawyers conduct many traditional legal practices. One example is in the handling of privileged documents. With many matters now involving several gigabytes of electronically stored information (ESI), the risk of producing privileged information has increased substantially. Federal Rule of Evidence (FRE) 502 was enacted in 2008 to address the inherent challenges of protecting privileged information in the age of big data.

FRE 502 was the subject of an Exterro webcast last week featuring attorneys and e-discovery experts David Kessler and Conor Crowley. The presentation focused on two central elements of the rule:

  • FRE 502 (b), which clarifies that inadvertent disclosure does not result in waiver when the holder of the privilege "took reasonable steps to prevent disclosure" and "promptly took reasonable steps to rectify the error."
  • FRE 502 (d), which recognizes that a federal court may enter a confidentiality order providing "that the privilege or protection is not waived by disclosure connected with the litigation pending before the court."

The speakers agreed that FRE 502 (d) is not widely understood and severely underutilized. That assertion was reflected in a poll given to webcast attendees, which revealed that a majority had yet to enter into a FRE 502 (d) agreement. In fact, several attendees hadn't even heard of the rule. “Sadly I'm not surprised," said Kessler, with respect to the poll results. “This is indicative of a widespread problem with 502 because it hasn't gotten the publicity it needs, and I think lawyers are shooting themselves in the foot." He added that the topic of FRE 502 (d) is raised in virtually all the federal cases that he's involved in and that entering into an agreement is often a win-win for both parties.

When the discussion turned to the role technology plays in protecting privilege, Crowley observed that unlike the 2006 amendments to the Federal Rules of Civil Procedure, FRE 502 explicitly recognizes the role technology plays in helping to demonstrate a reasonable process. He said one area that technology can be especially useful is in data sampling. “Although you can't review every single thing you send out, you can sample to give yourself some idea of the extent to which privileged documents may have slipped through the cracks, and I think that will go a long way with the court that you did use reasonable steps." Kessler pointed to the benefits of using technology to validate a privilege review. “One of the things that we do is to not only use search terms to identify potentially privileged documents at the front end. We use search terms, predictive coding, clustering and near de-duping to check our productions on the back end and see if there are documents within the production set that are very similar to our privilege set before they go out the door."

Both speakers emphasized the importance of process. “You need both good technology and good people," Kessler said. “But if your process isn't well thought out I think you can fall down dramatically." Of course, technology can also be used to assist with process, especially when it's designed to perform a project management function.

You can watch a recording of Exterro's webcast, “(b) v. (d) Protecting Against the Disclosure of Privileged Information in E-Discovery" here.