THE PROTOCOL. In cases where the parties have not entered into a protective order or confidentiality agreement, the CCLD has set out a Protocol (right) to guide parties in resolving the problem of inadvertent productions of privileged or confidential documents. In setting out this framework, the CCLD has freely borrowed from the principles set out in Federal Rule of Evidence 502. The key takeaway from this Protocol is that any inadvertent production does not operate as a waiver of any claim of privilege as long as the retrieval procedures described below are followed.
RECEIVING MATERIALS INADVERTENTLY. The Protocol mandates that if a party receives what it believes are inadvertently produced privileged materials, that party must either return the materials or notify the producing party of the inadvertent production. Once a party realizes that they have inadvertently produced privileged materials, they have two alternatives to retrieve those materials depending on how much time has elapsed since the disclosure. Within 120 days of the production, a party may give written notice to all parties that the documents produced were privileged and identify the nature of the privilege. Upon receiving such notice, all receiving parties must return or destroy the privileged documents and not make any use of the contents. The receiving party may challenge the assertion of privilege, however, and the court will ultimately determine whether the claim of privilege is well founded. If the inadvertent production eludes the producing party's attention for more than 120 days, the party may still try to retrieve the materials up until 30 days before trial by giving written notice. If the parties cannot resolve the dispute within 10 days of the notice, the producing party may file a Protective Order with the court.