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Jerold S. Solovy Robert L. Byman

The Food and Drug Administration publishes “Food Defect Action Levels” that specify the amount of insect parts that may permissibly be found in various foods because they are “unavoidable.” 21 C.F.R. Part 110.110. It is unavoidable, and therefore permissible, for there to be 60 insect fragments per 100 grams of chocolate. If you add up all of the permissible pieces, the average person consumes 2.5 pounds of insect fragments per year, roughly the equivalent of 20 adult cockroaches. Bon appetit. Mistakes happen. Which brings us to the inadvertent production of privileged materials. We strive for perfection, but we know we will fall short, so the law has developed a certain tolerance for such mistakes. We have written on the subject before. [NLJ, 12-21-98.] But our previous discussion dealt with the problem in general. The advent of the electronic age has raised the stakes and demands special consideration. The impact of inadvertent production: three views There are three basic views. At one end of the spectrum is the strict approach-any voluntary production of a privileged document, whether intentional or accidental, is a waiver of the privilege. See FDIC v. Singh, 140 F.R.D. 252, 253 (D. Maine 1992). At the other end is the lenient view-inadvertent production can never be a waiver. See United States v. Zolin, 809 F.2d 1411, 1417 (9th Cir. 1987) (Texas R. Civ. P. 193.3, 196.4). But the overwhelming majority of jurisdictions apply a flexible test assessing the reasonableness of precautions taken, the volume of the discovery and general fairness. Angell Investments LLC v. Purizer Corp., 2002 U.S. Dist. Lexis 11545 (N.D. Ill. 2002) The Advisory Committee on the Federal Rules of Civil Procedure is currently considering whether and to what extent the federal rules should be amended specifically to address electronic discovery issues. One of the principal areas of concern is inadvertent production because “[t]he sheer volume of electronic data potentially produceable may make the prospect of an unintended privilege waiver a more likely occurrence than would otherwise be the case.” It was bad enough in the paper age. No set of human eyes could be expected to stay alert through the review of thousands of pieces of paper. Something would be missed, insect parts would get into the production. But the e-age multiplies the amount of data to review. E-mail is easy and rampant; more documents get created. E-sharing is the norm; more documents get shared with more people, each of whom may add a little comment, creating a new “document.” E-storage is cheap, easy, automatic; more documents get saved. E-limination is difficult; when paper documents were trashed they were gone, but deleted e-documents can often be raised from the dead (or at least from backup tapes). It is one thing to have to go through 1 million pages of documents. That is a daunting task, but it can be done. But now we are dealing with cases that measure producible data in terabytes-a trillion bits of data (roughly 20,000,000 printed pages). See In re Worldcom Inc. Sec. Litig., 2003 U.S. Dist. Lexis 22732 (S.D.N.Y. 2003) (4 terabytes). Moreover, electronic documents contain background data�metadata and embedded data�which may or may not be reducible to printed form. Metadata are the electronic equivalent of a routing slip�showing when the document was created, edited, sent and received. Embedded data are a link or formula or other substantive matter; for example, if you print an Excel spreadsheet, you will see numbers; but you will not see the formulas by which the visible numbers were calculated. The hidden data may easily establish or defeat a privilege. The document may, on its face, show that it was a press release written by a corporate executive; it is produced. But what if the metadata establish that the document was created by a lawyer in anticipation of litigation, and that it was never sent to anyone? Oops. Inadvertent production. Consider this. No matter how careful you are, some computer geek may have incorporated a feature into software you do not even know is on your computer that leads to inadvertent production. In United States v. Rigas, 281 F. Supp. 2d 733 (S.D.N.Y. 2003), the government took undeniably reasonable precautions before it made electronic information available. The data were loaded on a dedicated drive on a computer in a secure facility. Defense counsel’s consultant was allowed to copy the drive. Back at their offices, defense counsel discovered files that contained obvious work product on both the Rigas case and others. Defense counsel immediately advised the government what they had found without further review of the materials; they deposited the files with the court while they sought an application for permission to use them because of inadvertent production. It turns out that the files were unwittingly copied onto the drive because of a software program that made automatic backups of user files. It was a program that ran in the background, designed to provide a backup for disaster recovery. On those facts, the court found that there was no inadvertent disclosure. But what about the next time? Fool me once, shame on you; fool me twice, shame on me. Now we have a written opinion that airs the fact that these types of backup programs exist. One wonders whether the next court facing the honest protestations of a lawyer claiming he did not know backup programs might copy his privileged materials onto a drive will consider that failure inadvertent. See, that’s the point. Since most courts are going to consider whether reasonable precautions have been taken to prevent inadvertent disclosure, the definition of reasonable is going to change each time a case gets reported. It was perfectly reasonable for the government not to realize it had a backup program. It would be less reasonable to rely on the same excuse twice. In fact, even in the lenient jurisdictions where any inadvertent production is given back, there still must be a showing that the production was inadvertent. If production is made recklessly without any attempt to learn from past mistakes, might not a court decide that the mistake is not inadvertent at all? So, do we need a new rule for a new age? The electronic age has dramatically altered the chances of inadvertent production. And while we agree with the advisory committee’s thought that the volume of e-discovery will lead to more cases of such inadvertence in the short term, we think that the computer age may eliminate the problem in the future, without any need for rule change. Let’s step back a minute. There are generally two critical junctures at which the inadvertence can occur. First, when any privileged document is created, there are opportunities to flag the document as such. If those opportunities are missed, that failure may lead to inadvertent production no matter how thorough the later litigation production review. Second, no matter how clearly the document was identified as privileged when it was created, it may be inadvertently produced because someone just misses the flags. Presumably, if a written document really contains work product or privileged attorney-client communications, an attorney is involved somewhere in the process. Presumably, the attorney can, with minimal effort, get the words “privilege” or “work product” put on that document on its face or in the meta or embedded data. Though courts sometimes uphold privilege even when a document is not stamped with the magic words, can there be any doubt that courts are going to become more and more skeptical of whether a true privilege exists if we do not take simple steps to identify documents as privileged? So let’s assume that the day is coming when it will be hard to convince a court that a document is privileged if it does not, somewhere, include the words privilege or work product. It is easy in the electronic age to get the flags put on. So easy that maybe it exceeds inadvertence not to. Once the flags are there, it’s child’s play to find them And once the flags are there, it is child’s play to find them. Give 10 lawyers 10 days to look at 10 million documents to find 10 privileged documents, and we predict they will miss one. Give one computer technician one hour to search 10 million documents and he will find all 10, every time. Even in those cases where the attorney fails to get the word privilege physically put on or embedded in a document, the ability to search will make it easy, if not foolproof, to find privileged materials. Search by the name of lawyer, and you’ll find all of those documents. Now, of course, the problem with computer searches is that they are often literal. A search for “privilege” will not find documents stamped “privileged.” But that should not be a problem. Many search programs use fuzzy logic that will search for mutations of the search terms; and even when you are constricted by literal search tools, you can compensate by searching for the likely permutations. Here is the scary part. If we can figure this out, a court might decide that you should have too. A mistake that once might have been excused under the rubric “inadvertent production” might no longer be available to you. And that might be a bitter insect to swallow. Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block. Solovy, the firm’s chairman, can be reached at [email protected]

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