The following Order encourages disclosures between the parties about ediscovery by making certain communications non-discoverable and inadmissible, and by ensuring that those communications will not waive any otherwise applicable privilege or protection.
It’s rooted in the principles underlying Federal Rule of Evidence 408, which encourages settlement by making certain settlement communications inadmissible, and Federal Rule of Evidence 502, which provides for broad protections for certain disclosures in the context of discovery. As one commentator has noted, “[e]ncouraging discovery cooperation is surely no less valid than encouraging parties to settle on the merits.” Steven S. Gensler, A Bull’s-Eye View of Cooperation in Discovery, The Sedona Conference Journal 363, 374 (Fall 2009) (available at https://thesedonaconference.org/node/920, last accessed July 16, 2014).
It’s intentionally overbroad. It’s a work in progress and I’m looking for comments and contributions. Ultimately, I’d like to wind up with text that is crowdsourced and both generalizable and customizable.
Order Protecting Certain EDiscovery Communications
1) Oral communications concerning ediscovery between any parties by their counsel, agents, representatives, or employees shall not be discoverable or admissible for any purpose.
2) Written communications concerning ediscovery between any parties by their counsel, agents, representatives, or employees shall not be discoverable or admissible for any purpose, provided that each such communication begins with the prominent notation “ED Priv.” In the case of email, the notation must appear at the beginning of the subject line, and at the beginning of the body, and at the beginning of the file name of each attachment.
3) No communication falling within the scope of either of the two preceding paragraphs shall waive, or support the waiver of, any otherwise applicable privilege or the work product doctrine.