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Commercial Litigation Law
Clawing Your Way to the Top in the Age of Computer-Assisted
By Robert E. Sumner IV and Joel Anderson Berly IV
Have you ever tried to personally review 15,000,000 pages of electronic documents for privilege and relevance? There comes a time in the discovery process when manual, human review of documents is not only inefficient, but a practical impossibility. The management of large volumes of electronically stored information (ESI), including emails with attachments and families, Word documents, PDF’s, Excel spreadsheets, PowerPoints, photos, and texts, has forced lawyers and law firms to implement technology-assisted review (TAR) or computer-assisted review (CAR) protocols in lieu of the traditional document review process.
The benefits of TAR and CAR review are countless, but there are unavoidable downsides to an objective review process that lacks human intuition and judgment. Stated simply, the problem is that TAR and CAR are not perfect and there are still scenarios in which privileged information can be missed and inadvertently produced to opposing counsel.
With this backdrop, the issue of clawing back inadvertently-produced privileged or sensitive information has emerged at the top of most litigators’ list of worries. Under ordinary circumstances, claw-back questions are governed by Fed. R. Evid. 502(b). In order to show that a disclosure does not constitute a waiver of attorney-client privilege under Rule 502(b), the party who made the disclosure must demonstrate: (1) the disclosure was inadvertent; (2) the holder of the privilege took reasonable steps to prevent disclosure; and (3) the holder of the privilege took reasonable steps to rectify the error. But the Rule 502(b) matrix creates uncertainties that are ripe for argument, including what constitutes inadvertence, reasonableness, and reasonable measures to cure the disclosure problem. The only certainty under this matrix is that a claw-back request can easily become time-intensive and expensive.
The uncertainties and unpleasantness of a Rule 502(b) dispute can be avoided, however, with the use of a Rule 502(d) Order (“502(d) Order”). Rule 502(d) provides that “[a] federal court may order that the privilege or protection is not waived by disclosure connected with 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, Rule 502(d) gives the Court the authority to issue an order declaring that an inadvertent disclosure of documents does not constitute a waiver of privilege. The elegance of a 502(d) Order is that it can peremptorily make such a proclamation and altogether eliminate the Rule 502(b) inquiry from a case.
 Robert E. Sumner IV
Joel Anderson Berly IV

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