Jackson Kelly PLLC

Anticipation of Litigation Advisor


February 18, 2019

By: Jay E. Ingle

Every litigator has a standard Agreed Protective Order or Confidentiality Agreement they turn to when it comes time to exchange written discovery and documents.  You try to remember the last case you used it in, find it in your document database, change the caption, and voila!, you are ready to go.  If you are like most, you may have followed that same practice many times over, which means that your base document may have first been written many years ago.  In the ever-changing world of technology, that might as well be centuries.

As you are thinking about your go-to protective order, answer these questions:

  • Does it preclude you from keeping mimeograph copies of documents?
  • Does it include telexes you receive in the definition of documents?
  • Does your definition of software source code refer to punch cards?
  • What about the destruction of floppy disks?
  • Both 3½ and 5¼!!!

These examples may seem a little extreme, but I bet for some this antiquated terminology still exists.  And maybe that is okay just in case.  But other language may be more troublesome, especially at the end of litigation.

I Have Done a Great Job Placing Confidentiality Obligations on Others, But Can I Live Up to Them Myself? 

How documents are treated during litigation is not terribly difficult.  You may need to be careful to include various forms of electronic communications in your scope of protection, but otherwise the process is relatively routine in most cases.  Parties may mark items Confidential or Attorneys Eyes Only, parameters are established for who can see each classification, and certifications are prepared.

But what about the end of litigation?  Historically, many protective orders have contained a provision stating that the receiving party must destroy or return disclosed information, but “may retain one copy for their records.”  What does that mean in today’s e-discovery world?  Could you destroy everything if you wanted to?  Could you really keep just one copy?  Think of these issues:

  • How many individuals at the law firm have confidential materials in their e-mail folders?  Think of complex litigation where four or five attorneys might be copied on discovery related e-mails.
  • Do individual attorneys keep separate folders in Outlook?  Or do they file everything in the document database?
  • If your e-mails are stored in your document database, do you have to really make sure that there is only one copy in the database?  What if three different attorneys saved the same e-mail?
  • What about your e-discovery database, like Summation or Relativity?  Do you have to completely delete it?  Do you have to make sure there is only one copy of each document?
  • Don’t forget about your back-up e-mail system!  Do you have a system that automatically retains every e-mail, even if deleted from Outlook and your document database? 
  • Don’t forget the obligations on your clients – does the “destroy or return” language apply to them?  Can they comply without going to significant time and expense?

As you can see, trying to comply with a protective order written for paper discovery in today’s world can become either impossible or incredibly costly. 

Write Your Protective Order with the End of Litigation in Mind

As you draft your next protective order, think through whether you can live up to its obligations with e-discovery and the electronic world in mind.  You might have to draft a little more in some cases depending on the subject matter (is their AEO or Expert Eyes Only material involved?) or negotiate a little more, but it will save you some pain (and your client some money) on the back end.  These few pointers are a good start, but certainly not all-inclusive:

  • Do you really want to say you can retain “one copy”?
  • Agree on a methodology for retention of documents.
  • Specifically address your document database, e-mail servers, and back-up servers.
  • Agree on what can be destroyed and what can be saved, as well as how it is saved (hard drive, network, cloud).
  • Consider putting access limitations on what is saved to limit who in your Firm or your adversary’s will have access to any retained documents.
  • As you work through your protective order, remember that the obligations will be applied to both sides. 

Think about what protections your client will want for their confidential information and what obligations you and your client will have to live up to with your adversary’s confidential information.

Author:  Jay Ingle, Member, Litigation

© February 2019 Jackson Kelly PLLC



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