Electronic Discovery in the U.S. Court of Federal Claims

The United States Court of Federal Claims handles suits seeking monetary judgments against the federal courts as well as certain suits involving Native American tribes, and claims for copyright or patent infringement against the United States. In Jicarilla Apache Nation v. United States, No. 02-25L (Fed. Cl. June 30, 2010) Judge Allegra issued a protective order governing discovery in a complex litigation.

It was acknowledged that FRE 502(d), provides that disclosure to another party in litigation does waive attorney-client privilege. The order covered more than 1,000,000 pages of document images. In the absence of a confidentiality review, all images were required to be endorsed as 'Confidential Records', and the electronic media containing the images had to be stamped, 'CONFIDENTIAL MATERIALS - DO NO DISCLOSE'. Any person with authorized access has a duty to "prevent duplication of, access to, and distribution of" the materials.

The order specifies that inadvertently produced privileged plaintiffs' documents should segregated and not used for 14 days after notice of their status is received. The United States must determine whether or not they are privileged in this time period. A time limitation was not specified for plaintiffs' use of privileged documents produced by the United States - they simply cannot be used until a claim is resolved.

The Court of Federal Claims has its own rules, and RFC 26(b)(5)(B) says that inadvertently produced privileged information may have to be submitted under seal for review, and must in all events be preserved until the claim is resolved.