Document Review: Special Considerations with Confidentiality & Protective Orders
Protective orders are often used in litigation to protect confidential information such as trade secrets or proprietary information during document discovery. The protective orders will contain confidentiality designations to be applied during the document review process that indicate who has access to the information in the specific document.
There are a number of considerations or issues that can arise in applying confidentiality designations. These include:
Misclassification – Information that is defined by the litigants and the Protective Order as “confidential” can be found in any number of document types including emails, correspondence, reports, invoices, Board minutes, medical records and, even, employee personnel files. Failure to mark or stamp a document as “confidential” will potentially allow that document to be shared with third parties or become public if attached to unsealed court filings or used during trial. Thus, document reviewers need to understand enough about the case and about what is defined as “confidential” to properly identify and classify the documents being reviewed.
Desirable level of inclusivity – Because the documents being marked as “confidential” are being produced, litigants tend to want an expansive use of the “confidentiality” designation. For litigants, the dangers of over-inclusivity are often smaller than the potential dangers of under-inclusivity. Document reviewers need to understand the expectations of their clients in this regard. This understanding should become a feature of on-going quality control.
“To-be-returned” coding/stamping – Many confidentiality stipulations and Protective Order provisions contain requirements that any and all documents that are marked as “confidential” must be returned to the producing party after the litigation is completed. However, sometimes, only designated categories of “confidential” documents must be returned. If this is the case, then the document review team must understand what documents are expected to be returned and, if desired by the litigant, must accurately identify and mark such documents with a “to-be-returned” stamp or marking.
Baer Reed provides privilege review and other legal support solutions to law firms and in-house legal teams around the globe. To learn more, contact us online or call us today at 888-433-1990.
- On December 7, 2021
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