Rising from the Bay State’s Shores: the Clawback Provision and Optional Meet and Confers

Rising from the Bay State’s Shores: the Clawback Provision and Optional Meet and Confers

This past September, while the bearded ones were marching toward a World Series title, the Massachusetts Rules of Civil Procedure adopted a series of amendments as they relate to electronically stored information (ESI) and electronic discovery. These amendments will take effect on January 1, 2014.

As the volume of ESI grows, so can the difficulty of adequately reviewing it for privilege before it is produced. The inadvertent disclosure of privileged or protected information is bound to occur. Of particular interest to counsel, therefore, may be Rule 26(b)(5), General Provisions Governing Discovery, and the new clawback provision.

It states that when a party has inadvertently produced protected information and has notified the receiving party of the claim of privilege, the receiving party must promptly return, sequester or destroy the specified information. It also asserts that the receiving party shall not use or disclose the information until the claim is resolved. If that claim of privilege is then contested, the receiving party may present it to the court under the impoundment procedure. The court will determine whether the disclosure of the information was, indeed, inadvertent and whether the holder of the privilege took reasonable steps to prevent it. This clawback provision is not restricted to just ESI; it also applies to the inadvertent production of privileged or protected information in other forms.

To potentially avoid your company’s inadvertent production of information, technology-assisted review (TAR) can help quickly and accurately identify privileged documents.

The amendment tide continues to roll with the addition of a new sub-section of Rule 26 that addresses conferences regarding ESI.

Unlike the Federal Rules of Civil Procedure and the Uniform Rules Relating to the Discovery of Electronically Stored Information, the Massachusetts version of Rule 26 does not require a meet and confer. It does, however, acknowledge that such a conference at the early stages of litigation will often be helpful where there may be discovery of ESI.  The Massachusetts version is an attempt to foster communication between parties on ESI issues in a court environment that is not equipped to provide individual conferences or individual court management of litigation across the board.

These ESI conferences can occur in two forms: as of right (Rule 26 (f)(2)(A)) and by agreement (Rule 26(f)(2)(B)).

Rule 26(f)(2)(C) addresses that the purpose of the meet and confer, whether by right or agreement, is to develop a plan that relates to the discovery of ESI. The rule also issues a number of topics that must be discussed at the conference, including the preservation and production of ESI.

A best practice would be to schedule a call before the meet and confer that includes your service provider. This is an opportunity to discuss what your goals are, how you can save money and how to balance these two aims for the most appropriate way to proceed. The service provider can contribute valuable insight and understanding into the technicalities of your case, giving you an edge over opposing counsel.

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