Technological advancements have prompted an explosion in electronically stored information (ESI). A single laptop computer is capable of holding more than 2,000 banker’s boxes of paper, and a smart phone with 16 GB of memory can hold roughly the equivalent of 1,000,000 printed pages. Given the potential value of this data, litigants are routinely requesting ESI during discovery. At the same time, lawyers responding to these requests are faced with the Herculean task of sorting through mountains of evidence to remove privileged or confidential documents. This presents a risk management nightmare.
The potential liability for attorneys negligently producing confidential or privileged information in the course of e-discovery is readily apparent. However, the liability may not be limited to the producing party. When a receiving lawyer knows that her adversary’s discovery responses include inadvertently produced materials, the rules of professional conduct and civil procedure may require the receiving attorney to inform her adversary of the inadvertent disclosure and return or destroy all copies. This duty is heightened when the party producing the documents provides notice that the documents are privileged and were the result of a bona fide inadvertent disclosure.
Both parties producing and receiving ESI can protect themselves from liability by entering into “claw back” agreements, whereby the parties stipulate steps to be taken in the event of an inadvertent disclosure. Typically, these clauses state that the inadvertent disclosure does not constitute a waiver of privilege, the party discovering the inadvertent disclosure will notify the opposing side, the party will return the documents upon request, and such documents will be precluded from being introduced as evidence. Although we cannot unring the bell, attorneys can build a safety net to catch inadvertently produced materials by entering into these agreements and clearly define the ethical obligations of each side in the event of an accidental disclosure.