Court Declines to Preclude “Eyes On” Review for Privilege

Good v. Am. Water Works Co., Inc., No. 2:14-01374, 2014 WL 5486827 (S.D. W. Va. Oct. 29, 2014)

In this case, the parties made an effort to “craft an agreement respecting the handling of attorney-client and work product information inadvertently disclosed,” but disagreed regarding the proper procedure for identifying privileged information.  Defendants sought to “’encourage the incorporation and employment of time-saving computer-assisted privilege review, while Plaintiffs propose[d] that the order limit privilege review to what a computer can accomplish, disallowing linear (aka ‘eyes on’) privilege review altogether.’”  The court agreed with the defendants and entered an order allowing both computer-assisted and linear review, but invited the plaintiffs to file a second motion should the defendants’ methodologies result in unacceptable delays.

Both parties sought to rely on different provisions in Fed. R. Evid. 502.  Defendants sought the entry of an order pursuant to Fed. R. Evid. 502(d), which would allow them to conduct “some level of human due diligence prior to disclosing vast amounts of information.” “They also appear[ed] to desire a more predictable clawback approach without facing the uncertainty inherent in the Rule 502(b) factoring analysis.” Plaintiffs “appear[ed] to recognize” the availability and force of a 502(d) order, but “believ[ed] it [was] essential to the efficient progress of the case that they receive ESI materials expeditiously under Rule 502(b) with its clawback provision affording protection to defendants from misuse of potentially privileged information and communication.”  Specifically, the plaintiffs indicated that they “were willing to agree to an order that provides that the privilege or protection will not be waived and that no other harm will come to the Defendants if Plaintiffs are permitted to see privileged or work product protected documents” and that they therefore  saw “no practical reason” for a manual review and “no very good reason for any kind of privilege review at all prior to production,” but were willing to agree to computer-assisted searches “as a compromise because those [were] unlikely to result in any significant delays.”  Plaintiffs further argued:

If the Defendants are worried about the sanctity of privileged and work product documents, rather than the practical effect of their momentary disclosure, then they are going to take reasonable steps to protect the sanctity of those documents anyway, and therefore they do not need any greater clawback protection than that provided by F.R.E. 502(b).

Reasoning that “defendants’ cautious approach is not prohibited by the text of Rule 502,” and that they “appear[ed] ready to move expeditiously in producing documents,” the court concluded that Defendants’ “desired approach [was] a reasonable one” and entered “their proposed 502(d) order.”  The court indicated its expectation, however, that the defendants would minimize delay and that disclosure would be “accomplished quickly.”  If it nonetheless became apparent that “undue delay [was] thwarting the progress of the case” and that compliance with the court’s deadlines was “threatened,” the court invited Plaintiffs to file another motion, which would be heard on a priority basis.

A full copy of the court’s opinion is available here.