How do I Protect Documents From Legal Discovery?

Attorney-client privilege can protect documents from legal discovery.

According to the Federal Rules of Civil Procedure and all state laws of civil procedure, parties involved in a litigation have a right to what is known as discovery. Discovery is the process whereby one party requests another party to hand over all documents relevant or potentially relevant to a particular matter. Failure to hand over all relevant documents can result in extremely negative consequences, such as court sanctions and negative inference judgments. However, there are a few scenarios where you may be able to protect documents from legal discovery.

Instructions

1. Declare information as subject to attorney-client privilege or as part of attorney work product. Under the rule of law, attorney-client communications are protected communications. As part of these protections, parties cannot compel opposing parties to produce privileged documents. When conducting your internal discovery collection and review process, maintain a privilege log to keep track of privileged documents.

2. Have employees and third-party contractors sign confidentiality and nondisclosure agreements as a condition of their employment. Under the law, people and organizations can sign away certain rights, such as the right to discover certain information, as part of a contract. By signing a nondisclosure or confidentiality agreement, you may be able to keep certain documents out of court as per these agreements. Keep a copy of the signed nondisclosure or confidentiality agreement on file in the event that the validity of your claim is questioned in court.

3. Request a protective order from the judge. In some circumstances, when a party requests information from the opposing party that is highly sensitive, such as intellectual property information and proprietary information, you may be able to appeal to the judge that this information should remain private. The judge may request to review the documents in private before making his decision. If he determines that the information is sensitive and not relevant to the case, you may be granted a protective order.

Tips & Warnings

• If you inadvertently hand over a document to the opposing party as part of a discovery production, you may be able to legally recall the exposed document through a process known as "clawback." To clawback a document, you must appeal to the judge presiding over the case that the document was accidentally produced and then state a reason as to why it should be recalled. Although judges do not automatically grant clawback requests, it is worth making the effort, especially for privileged communications.

References

• DiscoveryResources.org: Protective Orders Protect Mistakes
• Lexbe: Discovery Production Features
• NCSU.edu: Office of Genearl Counsel: Confidentiality and Non-disclosure Agreements