Williams Mullen E-Discovery And Information Governance Team: A Cautionary Tale For All Litigators And A Must Read For Virginia Attorneys

By Bennett B. Borden and Monica McCarroll

Judge Payne's Opinion in ePlus Inc. v. Lawson Software, Inc. is a "must-read" for all attorneys practicing in the E.D. Va. and a cautionary tale for all litigators. Judge Payne provides a primer as to what privilege is, when it can be asserted, and how it should be logged in order to preserve the privilege.

Protecting Privilege with Proper Claw-back Agreements

The heart of his Opinion addresses the defendant's attempt to "claw back" eight documents it claimed were disclosed inadvertently, even though they had been reviewed and branded "confidential" by the producing party. Judge Payne examined the language of the claw-back agreement which allowed for the clawing-back of privileged documents that had been "inadvertently" produced and held that, contrary to its claims, the defendant "intentionally produced these documents . . . and then realized it had mistakenly produced them." Unfortunately for the defendant, Judge Payne ruled that "the Protective Order does not cover 'mistakes.'" Not only did Judge Payne rule that the eight documents had to be produced, but that the privilege regarding the entire subject matter was waived.

The defendant could have avoided this result if it had incorporated the right language into the protective order. Fed. R. Evid. 502 was enacted in 2008 to protect not only "inadvertent" disclosure, but also intentional, albeit mistaken, disclosure like the disclosures at issue in this case. However, the protection applies only when the correct language is incorporated into a Court order. Rule 502 should always be considered when a litigant's production includes potentially privileged documents.

Proper Assertion of Privilege in Logs

Judge Payne's Opinion also details the defects in a privilege log that can lead to a waiver of privilege. In his Opinion, Judge Payne outlined the deficiencies of the privilege log produced by the defendant.

  • Entries did not contain author and recipient information, and the Court held that the defendant waived privilege as to the documents related to those entries.
  • Entries did not identify an attorney in the recipient or author field but claimed that the document was protected by the attorney-client privilege. Because it was not clear that these communications were made to or by an attorney, the privilege was waived as to the documents related to those entries.
  • Almost 300 entries in the privilege log concerned communications to ten or more non-attorneys, and the defendant failed to demonstrate that these persons "needed to know" the information communicated or that these communications were made at the direction of supervisors for the purpose of securing legal advice. Without such showings within the narrative of the privilege log, the privilege was waived with respect to those documents.

Thus, litigants in the Eastern District of Virginia should ensure that each privilege log entry contains the requisite information outlined in Judge Payne's Opinion to withstand privilege challenges. If you have any questions, please contact a member of the Williams Mullen eDiscovery and Information Governance Section.

With approximately 300 attorneys practicing in over 30 practice areas, Williams Mullen provides comprehensive legal services to regional, national and international clients. Their clients include multinational Fortune 500 companies, private family-owned businesses, nonprofit organizations and government entities.  From offices in North Carolina, Virginia, Washington D.C. and London, Williams Mullen attorneys bring skills and experience to solving the legal needs of their diverse client base.

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