eDiscovery Case of the Week: Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp.

Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013) highlights the importance of utilizing Federal Rule of Evidence 502(d) orders in eDiscovery reviews.  A Rule 502(d) order protects parties from the inadvertent disclosure of privileged material.  Rule 502(d) allows the court to issue an order stipulating that disclosure does not waive the attorney-client privilege or work-product protection. Further, the order is aimed at lessening privilege review expenses and expediting privilege reviews. 

In Brookfield, Defendant’s eDiscovery vendor produced redacted draft board minutes, the redacted portion of which was visible in the metadata.  Because the court previously had entered a 502(d) order, it found that Defendant “ha[d] the right to claw back the minutes, no matter what the circumstances giving rise to their production were.”  In line with the language of the Rule, the order stated, “Defendants’ production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by Defendants of any privilege applicable to those documents, including the attorney-client privilege . . . .”  

The court also noted that this situation highlighted the “need for counsel for a producing party to keep a watchful eye over their e-discovery vendors . . . .”