Entering into a Rule 502(d) order. Federal Rule of Evidence (FRE) 502(d) permits a federal court to order that the disclosure of attorney-client privileged material, protected work product or other protected information does not waive those protections in the pending case or in any other federal or state proceeding (FRE 502(d)). A Rule 502(d) order typically is applicable to the production of all privileged material, regardless of whether the production was inadvertent. Parties that enter into a Rule 502(d) order should still use care when conducting a privilege review, but they can customize the privilege review based on the level of risk associated with the potential disclosure of substantive privileged documents.

For more information about Rule 502(d) orders, see Standard Document, FRE 502(d) Order.

Entering into a confidentiality order with a claw-back provision. A confidentiality order identifies confidential information that a party would like to protect from disclosure and the persons that have access to it. Parties often stipulate to a confidentiality agreement and then have it ordered by the court. In a case involving particularly sensitive information (such as patent designs), the parties may agree to a two-tiered confidentiality order, limiting access to the most sensitive information to a select group of individuals, such as outside lawyers.

Counsel may incorporate a provision for a privilege waiver with a claw-back into a confidentiality order. This provision sets out a process for recipients of privileged information to return privileged information that counsel inadvertently discloses during discovery. It also protects against the waiver of privilege resulting from inadvertent disclosure. In that respect, it is belt and suspenders for parties that also have entered into a Rule 502(d) order, as it does not afford any additional protection against privilege waiver than that afforded by Rule 502(d).

For more information about confidentiality orders, see Standard Documents, Confidentiality Agreement (Order) (Federal) and Confidentiality Orders: Standard by Circuit Chart. For more information on claw-back provisions, see Standard Clause, Privilege Waiver Clause with Clawback Provision (Federal).

Understanding the available technology. To help a client make decisions about which technology best suits its risk tolerance and confidentiality concerns, a practitioner must be well-versed in the available technology. Counsel should be able to identify the pros and cons of using technology such as predictive coding, concept searching and keyword searching.

For more information about document review technology, see Practice Notes, Responding Parties: Document Review Overview: Review Method and Long Live Predictive Coding.

Knowing the vendors and their capabilities. Similar to understanding the available technology, counsel should be familiar with the vendors that offer document review technology to help ensure a successful review process. For example, some clients with extremely sensitive information may prefer to work with one vendor to handle all of their e-discovery needs.

For more information on selecting e-discovery vendors, see Considerations When Selecting an E-Discovery Vendor Checklist, Questions to Ask a Prospective E-Discovery Vendor Checklist and Request for Proposal to Retain E-Discovery Vendor Checklist.