It’s difficult to avoid a data dump when producing electronic documents for the purposes of litigation, but if Blythe v Bell, 2012 NCBC 42, teaches anything it’s ‘think before you dump’.
The plaintiffs asked for the production of documents from the defendants in this North Carolina case, eventually having to file a motion to compel production. To move things along, the plaintiffs provided a list of search terms to assist the other side in identifying relevant computer files, noting that the plaintiffs were in no way assuming the defendants’ discovery obligations and that the list of keywords might be under- or over-inclusive. The defendants responded with what looked like a data dump, prepared by an external consultant who seems to have used the plaintiffs’ search terms without modification. It appeared that there had been ‘minimal effort’ on the defendants’ part to review the documents, much less to exclude privileged communications (apart from segregating some e-mails to and from their lawyer’s account). The plaintiffs were fairly sure, however, that privileged material was included in the 307 million files that were produced, but there was no way to verify this without opening each document individually. The defendants’ lawyer indicated that there had been no intent to produce privileged communications, and that any such production was inadvertent, but without providing specifics. A subsequent batch of documents was then produced, from which privileged documents had been removed and logged. The plaintiffs continued to review the original batch but implemented procedures to segregate potentially privileged material, which they did not review. The defendants were informed of this but did not request the return of the documents originally produced. The plaintiffs, frustrated by the whole process, ultimately took the position that privilege had been waived over the original batch of documents. The defendants moved to compel the return of the material, accusing the plaintiffs of ‘reprehensible conduct’ in taking the position they did.
The North Carolina superior court recognised that the volume of electronic documents can make detailed privilege review unrealistically expensive, and that a balancing of interests needs to be undertaken. The defendants in this case could not be said, though, to have made reasonable efforts to protect their privilege: you can’t insist on protections to safeguard privilege after the horse has left the barn, as it were. Efforts to protect privilege were ‘limited’ and ‘not commensurate with the value of the privilege’. There was no real oversight of the consultant, the search methodology was not up to snuff and what limited privilege review there was had failed to isolate all privileged communications. Waiver of privilege was the result of the defendants’ failure to take reasonable precautions in advance of production.