David Rothenberg

A client recently asked me to review an ESI protocol written by their counsel in another matter. It included a Federal Rule of Evidence 502(d) provision, but the words “inadvertent” and “inadvertently” were peppered throughout it. I sighed. Why? Because Rule 502(d) is not limited to accidental disclosures and there are good reasons a party may need to disclose privileged material intentionally without waiving privilege more broadly. Consider a party required to disclose a privileged litigation-hold notice to demonstrate that it took reasonable preservation steps. Or a document that is privileged in one jurisdiction but not another. Disclosure may be necessary in the pending litigation, but that does not mean third parties should be able to argue that the privilege has been waived everywhere else. That is where Rule 502(d) offers extraordinarily powerful protection: “A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court, in which event the disclosure is also not a waiver in any other federal or state proceeding.” In other words, when a properly drafted 502(d) order is in place, the disclosure of privileged material—whether inadvertent or otherwise—does not waive the privilege. So why does inserting “inadvertent” matter so much? Because Rule 502(b) already addresses inadvertent disclosure. Its protection, however, is conditional: the producing party must show that it took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the error. A well-drafted 502(d) order avoids those inquiries. No fight over whether the producing party’s privilege review or quality-control process was sufficient. No expensive “discovery on discovery” into the steps taken to prevent disclosure. No dispute over whether counsel acted quickly enough after discovering the production. A document is disclosed, “inadvertently or otherwise,” to borrow retired Judge Andrew Peck’s elegant formulation, and privilege is not waived. End of story. Limiting a 502(d) order to inadvertent disclosures gives up much of the protection the rule was designed to provide. So, the next time you draft or review an ESI protocol, confidentiality order, or, my preference, a standalone 502(d) order, search for the word “inadvertent.” If it limits the order’s protection, take it out. #eDiscovery #Privilege #FRE502 #ESI #Litigation #ConfidentialityOrder

86

28 Comments

This is definitely an interesting one…it brings to mind for me the simple principle that if a third-party is present during legal discussions that isn’t also representing you, it breaks privilege. The fact that the AI isn’t a lawyer and on top of that stores chats in some form of logging function on the backend that nth parties could access, should give pause to not just legal professionals but the average person as well. A bigger question is if a firm rolls their own AI trained for their particular practice area and that isn’t exposed outside of the firm, would _that_ be considered privileged…? 🤔

2

Nothing says ’tis the season like the California Privacy Protection Agency popping into your inbox to remind you that it will enforce the Delete Act. In its December 17 enforcement advisory, the CPPA clarified and warned: • Data brokers must register by January 31 annually and pay $6,600 (yikes) • Each legal entity must register separately • Trade names and websites must be disclosed • Failure to register can cost $200 per day (double yikes) Consider this your friendly holiday compliance nudge.

15

Continued California enforcement is reinforcing the need for identity symmetry, both in the scope of consent and in the friction organizations place on consumer rights requests. Please see the alert below from my colleague Tricia Wagner and me. #IDSymmetry #Data360 #Privacy #LegalEngineering #ConsentArchitecture

7

One Credit Card. Multiple Applications. A Ghost Rep Left a Digital Trail. A Procedural Fairness Letter (PFL) was issued in a TRV case. The trigger? IRCC identified that multiple applications were paid using the same credit card — yet no representative was declared. That is not random. That is a pattern. ⸻ 🔎 How Did IRCC Connect the Dots? IRCC does not only review documents uploaded in the portal. They analyze: • Payment methods • Linked transactions • Patterns across applications • Similar drafting styles • Representative disclosures When several unrelated applicants use the same credit card and no IMM 5476 is submitted, it can raise concerns that an undeclared paid representative is operating behind the scenes. That opens the door to a potential misrepresentation finding under s.40(1)(a) IRPA. ⸻ ⚖️ What Is at Risk? If misrepresentation is established: ❌ Application refusal ❌ 5-year inadmissibility ban ❌ A permanent integrity flag in IRCC systems ❌ Future applications scrutinized more closely And here’s the critical part: Even if a third party prepared or submitted your application, you remain legally responsible for its contents. ⸻ 👻 The Real Risk of Ghost / Unauthorized Representatives Ghost representatives often: • Do not have legal training • Are not regulated by CICC or a law society • Are not bound by a professional code of conduct • Do not carry professional liability insurance • Do not understand IRPA, IRPR, or case law • Use template-based or copy-paste submissions • Disappear when a PFL or refusal is issued They may: • Omit required disclosures • Fail to declare themselves • Provide inaccurate advice • Submit inconsistent or misleading information And when IRCC detects irregularities, it is the applicant — not the ghost rep — who faces the consequences. Unauthorized representatives are not just a compliance issue. They are a legal risk. ⸻ 📌 Bottom Line If someone: • Advises you • Prepares your forms • Submits your file • Collects payment They must be declared. Transparency is not optional in Canadian immigration law. Digital trails exist. Payment patterns are tracked. Integrity matters. A PFL is an opportunity to respond — but it signals that credibility is already under review. Immigration is not just about eligibility. It is about trust. #IRCC #Misrepresentation #UnauthorizedRepresentatives #GhostConsultants #ProceduralFairness #IRPA #ImmigrationCompliance #RCIC #CanadianImmigration

108

23 Comments