Protocol Which Deprived Defendants Opportunity to Review for Privilege Vacated
In Crosmun v. Trustees of Fayetteville Technical Community College, No. COA18-1054 (N.C. Ct. App. Aug. 6, 2019), the Court of Appeals of North Carolina vacated the lower court’s opinion and remanded for further proceedings after holding that the trial court abused its discretion by compelling the production of ESI through a protocol that allowed Plaintiff’s expert direct access to potentially privileged ESI and precluded reasonable efforts by Defendants to avoid waiving any privileges.
Stemming from a claim of retaliatory dismissal, Plaintiff served discovery request on Defendants, including a request for ESI located in Defendants’ computers and servers. Fearing that Defendants had spoliated relevant ESI, Plaintiff filed a motion to compel requesting the trial court “order that the parties identify a computer forensic entity or individual who, at Defendants’ cost, will search the computer servers…to determine if Defendants have deleted emails and files pertaining to these discovery requests.”
In response to Plaintiff’s motion to compel, the trial court entered a Protocol Order compelling discovery, as exactly requested by Plaintiff, providing for a forensic examination of Defendants’ computer files by an expert retained by Plaintiff. As provided by the Order, Plaintiff’s expert would run keyword searches for all responsive data as well as potentially privileged data. Any ESI retrieved from the searches that were not identified as privileged were then ordered to be delivered directly to Plaintiff, without Defendants having the opportunity to review the ESI for privilege. Defendants appealed the order on the grounds that it amounted to an involuntary waiver of their attorney-client and work-product privilege.
The appellate court ruling started out by noting: “Seeking justice often involves enduring tedium” and also noted that “ESI has become so pervasive that the volume of ESI involved in most cases dwarfs the volume of any paper records.” Despite that, the court noted that “North Carolina authority regarding eDiscovery is bare bones.”
Relying on decisions from other courts around the country as well as Sedona Conference principles, the appellate court ruled: “In short, the Protocol Order provides Plaintiffs’ agent direct access to privileged information, which disclosure immediately violates Defendants’ privileges. It furthers that violation by directing that agent, having attempted to screen some privileged documents out through the use of search terms, to produce potentially responsive documents without providing Defendants an opportunity to examine them for privilege. If, following that continued violation, Plaintiffs—their agent notwithstanding—receive privileged documents, Defendants must attempt to clawback that information, reducing their privilege to a post-disclosure attempt at unringing the eDiscovery bell. Such compelled disclosure of privileged information is contrary to our law concerning both attorney-client privilege and work-product immunity…As a result, we hold the trial court misapprehended the law concerning attorney-client privilege and the work-product immunity (however understandably given its undeveloped state within the eDiscovery arena), vacate the Protocol Order, and remand for further proceedings.”