Isha Marathe: The E-Discovery 502(d)ilemma: Attorneys Continue to Neglect an ‘Amazing Level of Protection’

Extract from Isha Marathe’s article “The E-Discovery 502(d)ilemma: Attorneys Continue to Neglect an ‘Amazing Level of Protection'”

Accidents happen—even to the most careful lawyers.

An attachment gets unintentionally tacked on to an email. A Slack message gets copied and pasted by an associate. In rarer, more notorious cases, an entire Dropbox file full of privileged goodies falls through the cracks and into the laps of opposing counsel.

Still, there are clawback or “snap-back” provisions in place for just such an occasion, allowing parties to recover the mistakenly shared information without having to waive attorney-client privilege. They consist of a handful of state rules and opportunities for counsel to set up their own discovery plans that include contingencies in case of a mistake.

But the easiest and most foolproof of safety nets has remained grossly underused for the 15 years it’s been available, federal judges told Legaltech News. And as the risk of inadvertent disclosures rises in tandem with digital collaboration and data review, it’s time for attorneys to examine the valuable rule collecting dust in their ESI toolboxes: Federal Rule of Evidence 502(d), which permits a federal court to enter an order that allows an attorney to claw back an inadvertent production regardless of their e-discovery practices, essentially, no questions asked.

An Unopened Gift

Former U.S. District Judge Paul W. Grimm of the District of Maryland, now head of the Bolch Judicial Institute at Duke Law, and an architect of Rule 502(d), called the rule “a gift that has remained unopened.”

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