EDD : Too Late for PreNup
"… more than 90 percent of all information is created in an electronic format."
The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, 1 (Jan. 2004)
That's a lot of files. That's why there's Litigation Support.
The sheer volume of EDD in an increasingly typical litigation has led to short-cutting that could become canonized in this year's proposed amendments to the Federal Rules of Civil Procedure. It is already common practice among lawyers, for example, to enter into "non-waiver agreements" that dispense with the protections offered by the attorney-client privilege and work-product doctrine. And the amendments mean well -- designed to ease burdens associated with reviewing and producing vast quantities of documents inadvertently produced during the discovery process (can you say "oops"?). But that way danger lies, say litigation partners Baughman and Boehning, of Paul Weiss et al, in a recent article, posted at Law.com.
The proposed amendments suggest procedures which U.S. Magistrate Judge Paul W. Grimm has said "no prudent party would agree to follow…" Of course not. They read like a retroactive pre-nup -- attached, optimistically, to the divorce proceedings:
(1) litigants should discuss issues relating to claims of privilege or protection
(2) litigants should enter into voluntary agreements to forgive inadvertent disclosure of protected materials
(3) litigants should specify a procedure to be followed in case of inadvertent disclosure of protected materials and post-production claims of privilege...
People who know suggest that complete pre-production privilege review should be assumed, and common sense cost/benefit analysis should be excercised. But this is a rapidly changing new horizon, and so far no path is guaranteed to get you there quick. Incomplete preproduction privilege review can present a real risk of waiver even when the parties agree to a "non-waiver agreement."
The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, 1 (Jan. 2004)
That's a lot of files. That's why there's Litigation Support.
The sheer volume of EDD in an increasingly typical litigation has led to short-cutting that could become canonized in this year's proposed amendments to the Federal Rules of Civil Procedure. It is already common practice among lawyers, for example, to enter into "non-waiver agreements" that dispense with the protections offered by the attorney-client privilege and work-product doctrine. And the amendments mean well -- designed to ease burdens associated with reviewing and producing vast quantities of documents inadvertently produced during the discovery process (can you say "oops"?). But that way danger lies, say litigation partners Baughman and Boehning, of Paul Weiss et al, in a recent article, posted at Law.com.
The proposed amendments suggest procedures which U.S. Magistrate Judge Paul W. Grimm has said "no prudent party would agree to follow…" Of course not. They read like a retroactive pre-nup -- attached, optimistically, to the divorce proceedings:
(1) litigants should discuss issues relating to claims of privilege or protection
(2) litigants should enter into voluntary agreements to forgive inadvertent disclosure of protected materials
(3) litigants should specify a procedure to be followed in case of inadvertent disclosure of protected materials and post-production claims of privilege...
People who know suggest that complete pre-production privilege review should be assumed, and common sense cost/benefit analysis should be excercised. But this is a rapidly changing new horizon, and so far no path is guaranteed to get you there quick. Incomplete preproduction privilege review can present a real risk of waiver even when the parties agree to a "non-waiver agreement."
0 Comments:
Post a Comment
<< Home