If you're interested in a nice, quick read on the interplay between electronic document search methods and human review in light of Federal Rule of Evidence 502 (regarding the inadvertent production of privileged documents), check out the recent 3-page memorandum opinion entered in Good v. American Water Works Company, Inc., 2014 WL 5486827 (S.D.W.Va. Oct. 2, 2014).
In that case, the parties met and conferred to craft a Rule 502(d) order to be entered by the court regarding the handling and return of any attorney-client privileged and work product documents that might be inadvertently produced during discovery.
As part of the "quick peek" agreement, the plaintiffs insisted that the court's order require the defendants to produce responsive documents immediately after using electronic search terms to remove any privilege documents, without allowing the defendants an opportunity to do a further linear (one-by-one) document review. The plaintiffs argued that because a Rule 502(d) order would enable the defendants to "claw back" any inadvertently produced documents and avoid any waiver of the attorney-client privilege or work product protection, no harm would come to the defendants if they produced documents without any further human review. As a result, the plaintiffs argued, there was no practical reason for the defendants to delay their document production with further review, once the electronic privilege searches were complete.
By contrast, the defendants wanted to use keyword search and computer-assisted review methodologies to initially identify responsive and potentially privileged documents, but they did not want to completely forego the ability to also perform a linear review of the results, to further safeguard against the production of potentially privileged documents. Notwithstanding the availability of electronic search and review methods, the defendants moved the court to issue a Rule 502(d) Order that still allowed their attorneys to review the documents, because they wished to avoid "the pins-and-needles anxiety of overlooking some nuance or making some mistake out of pure fatigue" that might still occur when attempting to remove privileged documents from a production.
Noting that it could enter a Rule 502(d) Order even when the parties do not agree on its terms, the court in Good granted the defendants' motion, finding their approach "cautious" and "reasonable," and not prohibited by the text of Rule 502. Addressing the plaintiffs' concerns that the defendants' approach might delay the proceedings, the court noted its expectations that the defendants would use the resources necessary to review and produce the documents promptly, adding that the plaintiffs could file another motion with the court if it became apparent that the defendants' "best efforts" to use their approach was thwarting the progress of the case and the court's prior scheduling orders.
The Good decision, while brief, provides some helpful reminders on the proper use of "quick peek" agreements and Rule 502(d) orders, and a healthy intersection of human and computer-assisted document reviews:
1. As the magnitude of data collections and document reviews continue to grow, Rule 502(d) Orders are a great safety net to ensure that litigants can "claw back" any privileged documents that fall through the cracks and are mistakenly produced.
2. Courts can enter Rule 502(d) Orders on their own, where one party opposes the request to enter such an order, or where the parties disagree on the proposed review, production and clawback procedures.
3. Despite the availability of both Rule 502(d) orders and technology to search for responsive (or privileged) documents, Rule 502(d) does not prohibit counsel from using both electronic search and linear review methods to locate and remove privileged documents prior to production. In fact, the court in Good found the use of both methodologies together to be reasonable and appropriately cautious.
The defendants in Good obviously – and prudently – disagreed with the plaintiffs' assertion that no harm could come from the inadvertent production of privileged documents as a result of the existence of a Rule 502(d) order. Once a privileged document is produced – even if successfully retracted pursuant to Rule 502 – it is still often very difficult to undo the damage that may come from "letting the cat out of the bag." Thus, the defendants' reluctance to rely exclusively on technology to weed out potentially privileged documents shows the importance of active human involvement and quality control during an electronic document review.
Originally published November 19, 2014
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