In Part I, Part II, and Part III of this series, we discussed the key takeaways from Principles 1-3, 4-6, and 7-9, respectively, of The Sedona Conference WG1’s “Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process” (available for download here). The Commentary seeks to address what parties can do to avoid, or at the least prepare for, challenges to an eDiscovery process they apply in a given matter and how courts should address discovery disputes.
In today’s installment, we discuss the key takeaways from the remaining principles, Principles 10-13 of the Commentary.
Principle 10. A party may use any reasonable process, including a technology-assisted process, to identify and withhold privileged or otherwise protected information. A party should not be required to use any process that does not adequately protect its rights to withhold privileged or otherwise protected information from production.
Parties have a right to not reveal their privileged or otherwise protected information, and attorneys have a duty to protect such information belonging to their clients. The need to design an eDiscovery process that appropriately identifies and withholds privileged information is one of the highest priorities during any review and production undertaking. This is so because a party wishing to rely on the “claw-back” provisions of Federal Rule of Evidence 502(b) in case of inadvertent disclosure of privileged information would need to demonstrate that it “took reasonable steps to prevent disclosure.”
When it comes to privilege review, reasonableness and proportionality are evaluated depending on the circumstances at hand, including time constraints, resource limitations, the volumes of ESI, the complexity of the task, and the inevitability of human error. Case law suggests, for instance, that failing to review a sample of “non-hits” (documents that were not responsive to the search terms) to test the effectiveness of the selection criteria developed to identify privileged material, would be inherently “not reasonable.” See Victor Stanley Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (2008).