As I’ve been noting all week, I’ll be speaking today at 12:45pm CT in the Litigation Support track at the ILTA>ON virtual conference.  The session is titled Clawbacks, Redactions, and Formats…Oh My! will also include Rachel McAdams, eDiscovery Technical Specialist with A&L Goodbody; Cristin Traylor, Discovery Counsel with McGuire Woods LLP and Cindy MacBean, Litigation Support Manager with Honigman LLP (who will be moderating).  Whether you’re able to attend the session or not, here are a couple of notable topics we’ll be discussing during the session.

Clawbacks and Rule 502(d) Orders

One of the most important considerations to address in eDiscovery is protecting yourself against inadvertent disclosures.  While the best clawback is the one you never have to make, mistakes can sometimes happen regardless of how thorough your QC processes are, so it’s important to file a Rule 502(d) order early in the case to protect yourself.  Here is the gist of Federal Rule of Civil Procedure 502(d):

FRCP Rule 502(d): “Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.”

In other words, this means non-waiver of privilege in that case and in any subsequent state or federal case, even with different parties, even if you haven’t done a careful privilege screening!  Why would you not file a Rule 502(d) order in every case to protect against inadvertent disclosures?  I have no idea – yet, many attorneys still don’t use the Rule 502(d) order in their cases.

The Sedona Conference Commentary on the Protection of Privileged ESI includes more info on the Rule 502(d) order, including a one-page sample order from former New York Magistrate Judge Andrew J. Peck (who regularly advocates their use), as well as a longer sample order.  It should be noted that Judge Peck has since added a sentence to the bottom of paragraph 1 of his order due to the Irth Solutions case (referenced below), as follows: “The provisions of Federal Rule of Evidence 502(b) do not apply.”

Two Notable Cases Involving Clawbacks

Here are a couple of cases that are likely to be referenced during the session involving clawbacks of privileged ESI:

In Irth Solutions, LLC v. Windstream Communications LLC, No. 2:16-CV-219 (S.D. Ohio Aug. 2, 2017), Ohio Magistrate Judge Kimberly A. Jolson, rejecting the idea that a clawback agreement always protects against waiver of privilege for inadvertently disclosed materials, found that privilege was waived by the defendant’s inadvertent but “completely reckless” production of privileged materials – not once, but twice.  Notably, the parties “agreed that a formal court order under Fed. R. Evid. 502(d) was not necessary based on the scale of the case”.

In Bellamy v. Wal-Mart Stores, Texas, LLC, No. SA-18-CV-60-XR (W.D. Tex. Aug. 19, 2019), Texas District Judge Xavier Rodriguez ruled that the defendant was entitled to “claw back” the documents it inadvertently produced in the case, but still considered those documents in analyzing the plaintiff’s motion for sanctions and granted that motion to the extent that he ruled that the defendant could not assert any comparative negligence defense in this case, including arguing that the danger (of a pallet being left unattended in the store) was open and obvious.

The Most Common Mistake When Redacting Information

During the session, we’ll also be discussing redaction trends, including increased redaction of native files.  There are several products that support redaction of Excel files, which are routinely produced now even in image/load file based productions as Excel files are typically not formatted for printing, so they don’t render well when converted to TIFF or PDF.  We’ll also discuss the growing trend for redaction of other native file formats and even the use of Artificial Intelligence (AI) to facilitate identification of text requiring redaction – especially for Personally Identifiable Information (PII) – and automatic application of those redactions, which will be necessary to support an expected growing wave of redaction of personal information.

Sometimes, the file format being redacted is a text enabled Adobe PDF file.  If so, there’s a right way and wrong way to redact these files.  Changing the text to white or the background to match the text color is not the same as redacting the text.  All you have to do is to revert back to the original formatting or simply highlight the affected area to see the redacted text.  This is the most common mistake that attorneys consistently make when redacting documents and it doesn’t just happen to attorneys in small firms – we’ve seen recent highly public examples of it with a very large law firm and a notable Federal government agency.  Using a document review platform that burns redactions into the document and ensuring those redactions are carried forward to produced text and metadata is the best way to avoid this common redaction fail.

So, what do you think?  How does your organization handle clawbacks and redactions?   Please share any comments you might have or if you’d like to know more about a particular topic.

P.S., to see what I “redacted” up above, highlight it with your cursor.  :o)

Disclaimer: The views represented herein are exclusively the views of the authors and speakers themselves, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.