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Rectifying Document Production Errors: Failure to Preserve, Failure to Identify & Inadvertent Production of Confidential/Protected Materials

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, January 14, 2021

Recorded event now available

or call 1-800-926-7926

This CLE course will provide counsel with guidelines for dealing with three recurring "mistakes" or missteps that occur during discovery and production of documents, review the surprising nuances and limits of computing and extending time under Federal Rule 6, and point out strategies for proving excusable neglect.


All law firms and all lawyers will inevitably make mistakes during discovery, especially when navigating increasingly large volumes of ESI. The key is proactive planning to avoid common pitfalls, and having a plan of action to respond to the client, opposing counsel, and the court when mistakes do occur.

During discovery, three common missteps are failing to preserve responsive evidence, failing to identify and produce responsive materials, and turning over confidential or proprietary information or documents, including client information, work product, or privileged information. The risk of these errors increases as the volume of information and variety of sources of information continues to exponentially expand while the deadlines for responding and producing are tight. When mistakes occur, counsel must assess the damage and determine the most appropriate response.

Listen as this experienced panel of litigators guides counsel through best strategies and solutions for preventing and managing discovery mishaps.



  1. Document production missteps
    1. Failure to preserve
    2. Failure to identify/produce
    3. Disclosure of confidential or privileged information or documents
    4. Redaction mistakes
  2. Preventing common missteps
    1. Involve the right stakeholders in the preservation & identification process
    2. Document the process from preservation through production
    3. Know your sources and case specific risks
    4. Do not overstate what you are doing/producing
    5. Use ESI Protocols & Rule 502(d) Orders to proactively plan and agree to terms
  3. Managing mistakes
    1. Assess the issue and identify solution
    2. Disclose and cure
    3. Case specific considerations


The panel will review these and other important issues:

  • What should counsel consider when assessing the severity of the mistake?
  • What should be included in discovery FRCP 502 protective orders?
  • What facts need to be gathered before dealing with the "problem" outside the firm?
  • How should counsel balance the need for prompt notification with the need for a thorough assessment?
  • Should firms have written procedures in place?
  • When is it necessary to notify insurers?


Grounds, Alison
Alison A. Grounds

Troutman Pepper

Ms. Grounds is a partner at Troutman Pepper based in Atlanta and is the founder and Managing Director of eMerge –...  |  Read More

Hamilton, Matthew
Matthew J. Hamilton
Troutman Pepper

Mr. Hamilton has more than 24 years of experience representing clients in complex pharmaceutical products...  |  Read More

Levitt, Melinda
Melinda F. Levitt

Foley & Lardner

Ms. Levitt’s practice focuses on complex commercial litigation, including the areas of antitrust, securities,...  |  Read More

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