The advent of large electronic productions has propelled a proposal to adopt new language in the standard confidentiality order used in the Commercial Division.  This proposal is designed to protect parties against inadvertent disclosure of privileged information.  On November 15, 2017, the Administrative Board of the Courts issued a request for public comment on a proposal to amend Commercial Division Rule 11-g to include sample “privilege claw-back” language. [1]  The proposal was spearheaded by a Subcommittee of the Commercial Division Advisory Council.  Comments on this proposal must be received by January 16, 2018.

The current version of Commercial Division Rule 11-g requires parties to use a template confidentiality stipulation.  If parties wish to deviate from the template, parties are required to submit a blackline and a written explanation of “why the deviations are warranted.”[2]

The language in the proposed revisions to Rule 11-g would provide that parties will “implement and adhere to reasonable procedures” to ensure that materials that are protected  under CPLR 3101(c) [attorney work product], CPLR 3101(d)(2) [attorney work product and material prepared in anticipation of litigation], and CPLR 4503 [confidential attorney-client communications] are withheld from disclosure.[3]  If information protected by these provisions, “Protected Information”, is inadvertently produced, the Producing Party would need to take “reasonable steps to correct the error, including a request to the Receiving Party” for the return of the information.[4]  Lastly, the proposed language would provide that the Receiving Party must return the Protected Information promptly and destroy all copies.  The Receiving Party is not permitted to challenge the document review procedure of the Producing Party or its efforts to rectify the error.  The Receiving Party would not be permitted to assert that returning the Protected Information caused it to suffer prejudice.

The proposed rule is aimed at mitigating the risks arising from inadvertent disclosures of information produced in large-scale discovery and avoiding the need for “satellite litigation” and disputes arising from inadvertent productions.[5]  As noted by the Subcommittee advocating for the proposed rule, the Federal Rules of Evidence already provide a similar claw back mechanism through which a party who has inadvertently produced a document may seek its return and the receiving party must return the document without arguing that there was a waiver of privilege.[6]  Many states have followed suit and have adopted identical or similar provisions, including Delaware—the “chief competitor to New York’s Commercial Division.”[7]  The Advisory Council’s Subcommittee acknowledged that the most efficient means of implementing this rule is by a formal amendment to the Civil Practice Law and Rules; nonetheless, until the legislature decides to take up this amendment, the Subcommittee proposes that the Commercial Division implement the default claw back provisions statewide.

Many practitioners in New York already adhere to the practice of negotiating confidentiality stipulation with provisions that incorporate clawback procedures similar to those set out in the proposed rule.  A default-claw back provision will prove useful for parties and practitioners that may not have anticipated the need for such protections.[8]  In the meantime, practitioners can voluntarily use the suggested claw back language in their confidentiality stipulations.

We will continue to monitor developments as they occur.