On October 29h, 2014, the US District Court, S.D. West Virginia entered an order allowing both computer-assisted and linear review after the parties disagreed on the procedure for identifying privileged information.
In this case, the parties met in an effort to “craft an agreement respecting the handling of attorney-client and work product information inadvertently disclosed”. They agreed on all points except on the proper procedure for identifying privileged information.
Defendants took the position that they should employ time-saving computer-assisted privilege review but that Rule 502(d) allows “eyes on” privilege review (i.e., manually review documents for privilege and work product protection, which they want to use together with the ESI. They also required a more predictable clawback approach without facing the uncertainty inherent in the Rule 502(b) factoring analysis. While Plaintiffs were willing to respect clawback provisions affording protection to defendants from misuse of potentially privileged information and communication, they saw no practical reasons for the use of manual privilege review prior to production, if not delay. For this reasons Plaintiffs proposed the order to limit privilege review to what a computer can accomplish, disallowing linear privilege review altogether.
The court agreed with the Defendants that their cautious approach is allowed under Rule 502(d) however the court cautioned against delay. The court entered an order along the lines suggested by the Defendant, however specified: “the defendants will marshal the resources necessary to assure that the delay occasioned by manual review of portions of designated categories will uniformly be minimized so that disclosure of the entirety of even the most sensitive categories is accomplished quickly”. However, the court warned that in case of undue delays, “plaintiffs should file a motion requesting that the approach sought by plaintiffs be adopted for the remainder of discovery and such a motion will be heard on a priority basis”.
Referenced Authorities: Fed.R.Evid. 502(b) and (d)
Good v. Am. Water Works Co., Inc., 2014 U.S. Dist. LEXIS 154788 (S.D. W. Va. Oct. 29, 2014) is available (with subscription) at http://www.lexisnexis…
For more information contact Nathan M. Crystal
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