Today’s blog post involves Federal Rule of Evidence 502, which was adopted to reduce concerns that the increasing production of electronically stored information (ESI) would lead to the aggressive use of waiver in cases of inadvertent disclosure of privileged information. To paraphrase, Rule 502(d) deems that a privileged disclosure does not constitute a waiver if (1) the disclosure was inadvertent, (2) the holder of the privilege took reasonable steps to prevent it, and (3) the holder timely took steps to fix the error per FRCP 26(b)(5)(B).
In Good et al. v. American Water Works Company, Inc. et al., 2014 WL 5486827 (S.D.W.Va.), the court entered a Rule 502(d) order encouraging Defendants to use computer assisted review for their document production, including to make privilege determinations. Defendants sought the court’s approval to follow the computer assisted review with a manual review for privilege and work product. Plaintiffs objected to this, arguing that a manual review would delay their expeditiously receiving the ESI. Further, Plaintiffs argued that because the Rule 502(d) order provided for a clawback procedure, Defendants had no practical reason for engaging in human review other than to delay the case.
The court did not agree with Plaintiffs, noting that nothing in Rule 502 or any other rule prohibited Defendants’ “cautious” approach of conducting a human review after computer-assisted review. The court did, however, warn Defendants that they needed to have the resources ready to accomplish the human review quickly and in accordance with the fixed discovery schedule. The court also directed Plaintiffs to re-file their motion if it became apparent that the Defendants were causing undue delay.
Did you know? FRE 502 passed in 2008 to ease concerns that increasing frequency of eDiscovery heightens risk of inadvertent disclosures.