Production Does Not Waive the Privilege.
One of the major hindrances to quick and efficient production of documents is most attorneys’ fear of producing privileged documents. This fear can lead to overly long and detailed privilege reviews and production of massive privilege logs.
The case law on waiver of privilege can be an obstacle to efficient document production. Counsel fear that if they let one potentially privileged document slip into their document production, they will then be faced with an argument for a very broad waiver.
Some jurisdictions permit snap back of privileged documents, but snap back rules sometimes are structured in a way that limits protection against waiver arguments. For example, in some jurisdictions, privileged documents can be snapped back only if their production is “inadvertent.” Sometimes counsel are over-inclusive when claiming privilege, because they do not want to later bear the burden of showing that production was inadvertent.
To deal with these concerns, the parties can agree at the beginning of a lawsuit that the production of a privileged document does not waive the privilege as to other privileged documents, and that documents can be snapped back as soon as it is discovered they were produced without any need to show that the production was inadvertent.
For additional protection, if the case is in federal court, the parties can request an order at the beginning of the case under Fed. R. Evid. 502(d), which provides that “a Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other Federal or State proceeding.”