eDiscovery Federal Rule 26(b)(5): Privilege Claims

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

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(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties; relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

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(5) Claiming Privilege or Protecting Trial-Preparation Materials.

(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that it is privileged or subject to protection as trial preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

(B) Information Produced. If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

Sources: April 29, 2015 Supreme Court Order re FRCP Amendment effective December 1, 2015; United States Courts: Current Rules of Practice and Procedure

Rule 26(b)(5) Summary

Any claims of privilege must be documented such that other parties can ascertain whether the privilege applies. Recipients of privileged or protected ESI must return, sequester, or destroy the information upon notification, and take reasonable steps to retrieve any information they may have disclosed prior to notification.

Rule 26(b)(5) Checklist

 As part of the document review, assess privilege and label documents appropriately in order to avoid invoking the rule.

 Memorialize the negotiated clawback agreement in a pre-trial order.

 Be sure to examine metadata in order to identify any hidden privileged information.