It is no secret that lawyers sometimes make mistakes. But with everyone communicating by email and digital information measured in terabytes, the stakes of error grow ever larger.

In particular, the “enormous proliferation” of documents to be reviewed and the complexity of the electronic discovery process in major commercial cases have increased the concern of lawyers and clients that adversaries may end up with material they were not meant to see, says Jonathan Lupkin of Lupkin & Associates.

As a result, a subcommittee of the Commercial Division Advisory Council chaired by Lupkin is offering an amendment to the division's confidentiality rules to mitigate the risk of inadvertent production of privileged material. The Office of Court Administration is seeking comment on the change, one of dozens of modifications to division rules and procedures proposed in the last few years.

Inadvertent production of privileged material often is the subject of “satellite” litigation. It can result in a judicial finding that privilege has been waived for the document turned over or even to any other privileged material with the same subject material.

The consequences of such a finding “can be catastrophic,” says a memo from Lupkin's subcommittee or what he called an “awesome embarrassment” in an interview.

The advisory council recommends, “to the extent parties wish to increase predictability and mitigate against the risk of inadvertent production,” they include in a standard confidentiality order adopted last year specified “privilege clawback” language with the following provisions:

• The parties will adopt and follow reasonable procedures to protect privileged material from disclosure.
• If protected information is inadvertently produced, the producing party will take reasonable steps to correct its error, including a timely request to the party that has received the protected information to return it.
• Upon request, the receiving party will return the information and destroy all copies.

Further, the party that receives the information would agree not to challenge the adequacy of its adversary's document review procedures or efforts to correct the error and would not assert that its return of the information has prejudiced it.

This curb on litigation would greatly reduce the chance that nonparties, including reporters, would learn about the information's existence and demand access to it, Lupkin said.

Parties in commercial cases routinely submit a proposed stipulation and order governing the production and exchange of confidential information. The proposed amendment mandates they explain in writing if they want to deviate from its language.

The federal courts adopted an evidentiary rule in 2007 (FRE 502) governing how instances of inadvertent production should be handled. Since then, 14 states have followed suit, most notably Delaware, New York's biggest competitor among the states in commercial matters.

The proposed amendment would apply only to the Commercial Division. Adopting it for all New York courts would require a statutory change. But Lupkin said that procedural fixes are difficult to achieve in Albany. “Everybody in the state Legislature has his own agenda,” he said, adding that the Commercial Division rule change “is really a stop-gap measure.”

The subcommittee's memo says that its approach should be adopted through an amendment to the CPLR, which “would maximize the rule's statewide impact and clarity and enhance predictability for counsel (and their clients).”

But it adds, “while the bench and bar await the passage of such an amendment … the Commercial Division can and should implement an interim measure to maintain its standing as a world-class forum for resolving commercial disputes.”

Those wishing to comment on the proposed amendment should email [email protected] or write to John W. McConnell, counsel, Office of Court Administration, 25 Beaver St., 11th floor, New York, New York 10004. Comments must be received no later than Jan. 16.

It is no secret that lawyers sometimes make mistakes. But with everyone communicating by email and digital information measured in terabytes, the stakes of error grow ever larger.

In particular, the “enormous proliferation” of documents to be reviewed and the complexity of the electronic discovery process in major commercial cases have increased the concern of lawyers and clients that adversaries may end up with material they were not meant to see, says Jonathan Lupkin of Lupkin & Associates.

As a result, a subcommittee of the Commercial Division Advisory Council chaired by Lupkin is offering an amendment to the division's confidentiality rules to mitigate the risk of inadvertent production of privileged material. The Office of Court Administration is seeking comment on the change, one of dozens of modifications to division rules and procedures proposed in the last few years.

Inadvertent production of privileged material often is the subject of “satellite” litigation. It can result in a judicial finding that privilege has been waived for the document turned over or even to any other privileged material with the same subject material.

The consequences of such a finding “can be catastrophic,” says a memo from Lupkin's subcommittee or what he called an “awesome embarrassment” in an interview.

The advisory council recommends, “to the extent parties wish to increase predictability and mitigate against the risk of inadvertent production,” they include in a standard confidentiality order adopted last year specified “privilege clawback” language with the following provisions:

• The parties will adopt and follow reasonable procedures to protect privileged material from disclosure.
• If protected information is inadvertently produced, the producing party will take reasonable steps to correct its error, including a timely request to the party that has received the protected information to return it.
• Upon request, the receiving party will return the information and destroy all copies.

Further, the party that receives the information would agree not to challenge the adequacy of its adversary's document review procedures or efforts to correct the error and would not assert that its return of the information has prejudiced it.

This curb on litigation would greatly reduce the chance that nonparties, including reporters, would learn about the information's existence and demand access to it, Lupkin said.

Parties in commercial cases routinely submit a proposed stipulation and order governing the production and exchange of confidential information. The proposed amendment mandates they explain in writing if they want to deviate from its language.

The federal courts adopted an evidentiary rule in 2007 (FRE 502) governing how instances of inadvertent production should be handled. Since then, 14 states have followed suit, most notably Delaware, New York's biggest competitor among the states in commercial matters.

The proposed amendment would apply only to the Commercial Division. Adopting it for all New York courts would require a statutory change. But Lupkin said that procedural fixes are difficult to achieve in Albany. “Everybody in the state Legislature has his own agenda,” he said, adding that the Commercial Division rule change “is really a stop-gap measure.”

The subcommittee's memo says that its approach should be adopted through an amendment to the CPLR, which “would maximize the rule's statewide impact and clarity and enhance predictability for counsel (and their clients).”

But it adds, “while the bench and bar await the passage of such an amendment … the Commercial Division can and should implement an interim measure to maintain its standing as a world-class forum for resolving commercial disputes.”

Those wishing to comment on the proposed amendment should email [email protected] or write to John W. McConnell, counsel, Office of Court Administration, 25 Beaver St., 11th floor, New York, New York 10004. Comments must be received no later than Jan. 16.