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

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

* * * * *

(b) Discovery Scope and Limits.

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

* * * * *

(5) Claims of Privilege or Protection of Trial-Preparation Materials.

(A) Information Withheld. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

(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 and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.

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.