Troutman Sanders LLP: Potential Conflicts Between The Duty To Cooperate With Respect To Pre-Trial ESI Discovery And The Duty To Protect Privileged Information

Under the Federal Rules of Civil Procedure, and many state court rules, parties to litigation have an affirmative duty to cooperate with respect to discovery. Complying with this obligation often involves the disclosure of information related to preserving, collecting, filtering, and producing electronically stored information. Recent cases have found too much disclosure in the name of defending one's e-discovery honor can result in a waiver of the attorney-client and work product protections with regard to these issues. Litigants must balance these disclosure obligations against the risk of waiver of protections related to these same processes.

Rule 26(f) of the Federal Rules is the foundation of the cooperation obligation and requires that parties "confer as soon as practicable" to "discuss any issues about preserving discoverable information; and develop a proposed discovery plan." The proposed discovery plan developed should include a discussion regarding "any issues about disclosure or discovery of electronically stored information."

These cooperation requirements, which were intended to limit the time and expense committed to discovery disputes, are particularly relevant to expectations that parties and their counsel have about privilege and work product protections in an era of ever-increasing ESI. In the past, parties and their counsel could (and most often did) keep their decisions relating to relevant ESI custodians, preservation, collection and search terms private. Today, these types of decisions are expected to be shared with the other side. In fact, the Federal Rules now contemplate that, more often than not, decisions regarding ESI should result from a collaborative effort by both sides.

Courts are showing less and less tolerance for parties who fail to cooperate and collaborate about e-discovery. For example, in the case of William A. Gross Construction Associates Inc. v. American Manufacturers Mutual Insurance Co. [enhanced version available to lexis.com subscribers] a New York Magistrate Judge severely criticized the parties for wasting resources by failing to cooperate in implementing their search methods.

And the Gross Construction case is really just the "tip of the iceberg." In other recent cases, courts continue to extend the boundaries of disclosure related to ESI - even to the point of sacrificing certain privilege protections. These cases are generally in the context of disclosures made in defense of e-discovery practices. Take the case of In re Intel Corp. Microprocesser Antitrust Litig. [enhanced version]. Intel discovered that it had made some inadvertent preservation mistakes. As such, in an effort to fully cooperate with plaintiffs, Intel provided plaintiffs with individualized summaries of its preservation issues. The plaintiffs were not satisfied and moved to compel the production of the attorney notes underlying the summaries. Intel argued that the notes were protected from disclosure by the attorney-client privilege and the work product doctrine. But a Special Master concluded that Intel waived the attorney-client privilege and workproduct protection when it turned over the summaries. In essence, Intel's argument aimed at preserving documents that would, in another context, almost certainly be deemed privileged or protected as work product was severely weakened by the fact that Intel had previously tried to fulfill its duty to cooperate with regard to ESI discovery and production. In a surprisingly similar decision, the United States District Court for the Northern District of Georgia recently held that a party had waived the attorney-client privilege and work product protection for certain documents simply by providing declarations from its counsel regarding the reasonableness of its document preservation and investigation. See In re Delta/Airtran Baggage Fee Antitrust Litigation [enhanced version].

The problem, then, is the need to balance the legitimate desire to guard discovery strategy and preserve privilege protections with the duty to cooperate in good faith regarding ESI. This balance is complicated when a party must defend against claims that its disclosure process was flawed. One way to avoid this problem is to avoid a challenge to the discovery process by documenting agreements and cooperative efforts. But not every challenge can be avoided. Occasionally, the very disclosures and cooperative information sharing that is intended to avoid disputes can be the trigger for a challenge. Litigants need to be aware of these potential pitfalls and carefully craft agreements and protocols to avoid an unintentional waiver of a protection in the event cooperation fails or their process is challenged.

For more information, please contact Erin Graham, Alison Grounds or John Hutchins. 

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Troutman Sanders is an international law firm with offices in North America, Europe and Asia. Founded in 1897, the firm's heritage of extensive experience, exceptional responsiveness and an unwavering commitment to service has garnered strong, long-standing relationships with clients across the globe. These clients range from multinational corporations to individual entrepreneurs, federal and state agencies to foreign governments, and non-profit organizations to businesses representing virtually every sector and industry.

Troutman Sanders lawyers provide counsel and advice in practically every aspect of civil and commercial law related to the firm's core practice areas: Corporate, Finance, Litigation, Public Law and Real Estate. With more than 50 practice groups focused on specific aspects of these areas, the firm is defined by its considerable knowledge base and proactive approach to addressing legal and business challenges.

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