Defendant’s “Document Dump” Leads to Waiver of Attorney-Client Privilege
Defendants often employ an old, tired tactic to overwhelm plaintiffs’ counsel in response to discovery requests: Bury them in paperwork! However, litigants may want to rethink this strategy, as the use of a “document dump” for electronically stored information (ESI) can lead to inadvertent disclosure of privileged information.
In the North Carolina business litigation case of Blythe v. Bell, 2012 NCBC 42, the defense production was handled by outside IT consultants who had absolutely no prior experience with ESI for legal discovery. The defendants gave meager instructions to not produce any email to or from the domain of their attorney’s law firm. They produced two hard drives containing 3.5 million documents to the plaintiffs, but never reviewed, indexed or retained a copy of their own defense production.
The plaintiffs then set out to issue code, search and review the ESI, and discovered that there was a large amount of data that fell under attorney-client privilege. The defense filed a motion for the return of the inadvertent disclosure under the state rules of civil procedure.
Plaintiffs challenged the motion, asserting that defendants had made a “document dump” purposely to shift the costs of discovery production and implored the court to not reward the defense for such behavior. Additionally, as the plaintiffs had to issue code and organize the data themselves, all the privileged information was mixed throughout the entire production. Plaintiffs asserted it would be impractical to segregate and return the data to defendants (and at an extreme additional cost, no less).
The Court ruled in favor of the plaintiffs and held the defendants’ actions constituted a waiver of privilege. The defendants failed to demonstrate any effort on their part to guard the privileged documents in their ESI production.
Our next blog will discuss what actions plaintiffs must take if they find themselves in similar situations; also review how our eConsultations and strategy planning can protect clients from disclosure of privileged information from the outset of the case.