Does anyone read what they sign anymore?  We all click through EULA’s; but shouldn’t lawyers and experts pay close attention to the terms of protective orders?

Here’s a familiar scenario:

Client says, “we have discovery responses you need to review, sign this acknowledgement to be bound by a protective order.”  I read the order and respond, “I can’t,” adding, “Like you, I have work product to protect, and like you, I back up my data.  I can’t ‘return’ data residing on backups.  I’ll carefully protect the data, but I can’t commit to destroy or return it when the case concludes.”

I’m the bad guy because everyone else signs.

First, let me further explain the conundrum. 

Producing parties regularly demand the confidential information they produce in discovery will be used solely for the litigation and won’t be compromised through carelessness.  The tool for this is an agreement between the parties commonly memorialized as an Agreed Protective Order entered by the presiding judge.

Agreed Protective Orders customarily provide a mechanism to bind those, like experts and consultants, who board the litigation train down the line.  This often takes the form of a declarations page obliging the declarant to, inter alia, submit to the jurisdiction of the Court, abide by the terms of the Protective Order and, when the case concludes promptly, ”return and deliver all information, documents or other materials produced and all documents or things prepared relating to the information, documents or other materials subject to the Protective Order.”

Protective Orders distinguish between Counsel in the case and their experts. The former enjoy work product protection under the Orders; the latter don’t.

There are several reasons for this.  First—and let’s be brutally honest—protective orders are drafted by lawyers, and lawyers look out for their interests above all when it comes to the potential to be sued for malpractice or hauled up on ethics charges.  Can you blame us?

Second, lots of lawyers don’t understand the limits of privilege.  The attorney-client and work product privileges are protections against compulsory disclosure of privileged material.  The privileges have no bearing on the obligation to preserve such material as a hedge against future claims of bad advice or bad behavior.  We preserve because it’s prudent or because we are required to do so in anticipation of litigation.

Third, lawyers are loathe to draft a document if they can find a form that suffices. If it came out of an order in another case, it’s precedent!  Our system of stare decisis renders even bad precedents rock to the scissors of good drafting.  “Everyone jumped off the bridge” is an argument that fails in grade school but succeeds in Court; accordingly, impractical language is hard to stamp out.

To recap, the attorney work product privilege is a legal protection from compulsory disclosure, not a legal duty to preserve work product.  The duty to preserve work product is a professional responsibility of anyone whose actions or testimony is predicated on work product, even if that work product derives from confidential material.  Experts need that protection as much as lawyers and are no less entitled to it—unless they sign their rights away.

It’s doubly troubling for lawyer-experts.  I’m a Texas lawyer.  I counsel only lawyers and courts and the work I do when my firm is engaged is my specialized practice of law.  I am answerable to my Bar’s disciplinary authorities.   Sometimes, I must present and defend my opinions in Court.  I generate work product, and I preserve work product because it’s responsible to do so.  Preserving work product doesn’t undermine my continuing duties to protect confidences.  Yet, every protective order I see requires I retain no work product if it derives from confidential material subject to the Order.

The solution to the work product dilemma seems simple: change the language of the Order, viz.,

Within sixty __ days after the final termination of this litigation, all data, documents, transcripts, or other materials afforded confidential treatment pursuant to this Order, including any copies, notes, transcriptions, extracts, summaries or compilations taken therefrom, but excluding any materials which in the good faith judgment of the person in possession are work product materials, shall be returned to the Producing Party or destroyed.

The simplicity of this is belied by the reality that experts may not be trusted to act with integrity.  But, if that’s the fear, what provision would ever serve to bind a cheater?

Isn’t it better to employ language that enables people to heed their better angels than draft something that fairly compels evasion?

An even more common and compelling example of protective order provisions observed in the breach are those addressing return and destruction of confidential information.  Most troublesome are provisions requiring return or destruction of information derived from protected information.

EXAMPLE: Economist engaged to work up a damages model agrees to be bound by a protective order requiring return of “all data, documents, transcripts, or other materials afforded confidential treatment pursuant to this Order, including any copies, notes, transcriptions, extracts, summaries or compilations taken therefrom.

The economist receives a thumb drive of sales data marked “HIGHLY CONFIDENTIAL: Produced subject to protective order” then makes a copy of the data on the drive, e-mails counsel about its contents and builds a database and damages model based in part upon data extracted from the drive.  The witness prepares a report that’s produced to the other side, gives a deposition and testifies shortly before the case settles.  Assuming the expert backs up her IT systems periodically and uses Outlook to access e-mail from her webmail account, the data, extractions, e-mail traffic and economic modeling and reporting are found in the Cloud, in local mail containers (Outlook.pst), archive mail containers (archive.pst), in local and network shared storage, on a laptop hard drive, in drafts, recovery files and shadow volumes and perhaps even in a paper filing system.

When the case settles, the first communication the economist receives will say “STOP WORK IMMEDIATELY.”  No further time expended will be compensated.  Still, that doesn’t excuse the expert from meeting her obligations under the protective order.

What does the diligent expert do now?  She has expressed professional opinions based upon confidential information. People relied on those opinions. If challenged as incompetent (or worse), how does she defend her work?  Settlement of the underlying case doesn’t extinguish the expert’s exposure.

Sure, the thumb drive will be returned to counsel; but, must the copy be put onto another thumb drive for return and the source double-deleted?  Must e-mails about the confidential data and the expert’s opinions be selectively deleted?  Must all copies and drafts of the reporting be purged, and what does it mean that all copies, notes, transcriptions, extracts, summaries or compilations taken therefrom must be turned over to the producing party?  Must they be  printed out and delivered?  Copied to another drive and tendered, then deleted by the expert?  Does that encompass communications with counsel and draft reports protected from discovery in federal practice?

Backups and e-mail archives are where it really goes off the rails.

Backups tend to be monolithic compilations, meaning you can’t selectively delete files and messages.  You must destroy the backup.  Who’s willing to put their firm at risk that way?  Even if you could selectively delete, who has the personnel and budget?

The same could be said of surgically excising embedded messages in e-mail threads.  Life is too short, and who pays for it when the case is over?  Finally, who has the energy to care at the end of a contentious case?

That last point may explain why you don’t hear more about these concerns–though this isn’t my first rant about problems with protective orders–the reality seems to be that nobody cares once the war is over.  Rarely does anyone follow-up about the post-case obligations attendant to protective orders.  Call me cynical, but do you suppose that has anything to do with the billable hours drying up?

I’m not suggesting that protective orders don’t serve valuable ends.  They do.  So, can’t we ditch the traps for the unwary and describe duties that make practical, technical and economic sense?

I’ve proposed (and courts have accepted) language like the following to be included in the acknowledgement declaration.  I hope you’ll consider it next time you draft a protective order:

Upon termination of this action, or upon request, I will destroy or return all information, documents or other materials produced subject to this Protective Order to counsel by whom I am employed or retained SAVE and EXCEPT documents or other materials that: (i) constitute work product or that form the bases of opinions expressed as an attorney-expert; (ii) are stored on backup storage media made in accordance with regular data backup procedures for disaster recovery purposes; or (iii) are located in email archives or archived electronic files, provided however that these materials continue to be subject to the terms of this Protective Order. Backup storage media will not be restored for purposes of returning or certifying destruction of Confidential Information, but such retained information shall continue to be treated in accordance with this Protective Order.

This isn’t the only way to skin the cat; but, it’s an approach that’s easy to implement and reasonably protective of everyone’s competing needs. What’s your solution?  How do you suggest we make protective orders more palatable and practical?