As has been well-documented by commentators, the advent of electronic discovery has resulted in a number of challenges with respect to conducting and managing document discovery. Due to the sometimes staggering burden and expense imposed by having attorneys individually review each electronic document to be produced in litigation, litigants and courts have looked for new ways to control and minimize costs and burdens, including by identifying ways to reduce the number of documents requiring individual review by attorneys.
Rules have been developed that protect litigants from accidentally waiving privilege by inadvertently producing a privileged document as part of a voluminous electronic document production. Federal Rule of Evidence 502, for example, provides that in certain circumstances the inadvertent production of a privileged document does not constitute a waiver of privilege, even with respect to that specific document, and certainly not with respect to a broader subject-matter category. Similar “clawback” rules have been promulgated in the local rules or default standards of various districts, such as in the Eastern District of Texas (E.D. Tex. [Model] Order Regarding E-discovery in Patent Cases, Rule 10) and the District of Delaware (Default Standard For Discovery, Including Discovery Of Electronically Stored Information, Rule 1.d).
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