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Court Opts for Defendant’s Plan of Review including TAR and Manual Review over Plaintiff’s TAR Only Approach – eDiscovery Case Law


In Good v. American Water Works, 2:14-01374 (S.D. W. Vir. Oct. 29, 2014), West Virginia District Judge John T. Copenhaver, Jr. granted the defendants' motion for a Rule 502(d) order that merely encouraged the incorporation and employment of time-saving computer-assisted privilege review over the plaintiffs’ proposal disallowing linear privilege review altogether.

Case Background

In this class action litigation involving the Freedom Industries chemical spill, the parties met and conferred, agreeing on all but one discovery issue: privilege review and 502(d) clawbacks.  The defendants proposed that the Rule 502(d) order merely encourage the incorporation and employment of computer-assisted privilege review, while the plaintiffs proposed that the order “limit privilege review to what a computer can accomplish, disallowing linear (aka ‘eyes on’) privilege review altogether”.

The plaintiffs would agree only to a pure quick peek/claw-back arrangement, which would place never-reviewed, never privilege-logged documents in their hands as quickly as physically possible at the expense of any opportunity for care on the part of a producing party to protect a client's privileged and work product protected information.  On the other hand, the defendants did not wish to forego completely the option to manually review documents for privilege and work product protection. 

The plaintiffs argued that if they were to proceed with a manual privilege review, then only 502(b) protection – the inadvertent waiver rule – should apply, and not 502(d) protection, which offers more expansive protection against privilege waivers.

Judge’s Ruling

Judge Copenhaver noted that “[t]he defendants have chosen a course that would allow them the opportunity to conduct some level of human due diligence prior to disclosing vast amounts of information, some portion of which might be privileged. They also appear to desire a more predictable clawback approach without facing the uncertainty inherent in the Rule 502(b) factoring analysis. Nothing in Rule 502 prohibits that course. And the parties need not agree in order for that approach to be adopted”.

Therefore, despite the fact that the plaintiffs were “willing to agree to an order that provides that the privilege or protection will not be waived and that no other harm will come to the Defendants if Plaintiffs are permitted to see privileged or work product protected documents”, Judge Copenhaver ruled that “[i]nasmuch as defendants' cautious approach is not prohibited by the text of Rule 502, and they appear ready to move expeditiously in producing documents in the case, their desired approach is a reasonable one.”  As a result, he entered their proposed Rule 502(d) order, “with the expectation that the defendants will marshal the resources necessary to assure that the delay occasioned by manual review of portions of designated categories will uniformly be minimized so that disclosure of the entirety of even the most sensitive categories is accomplished quickly.”

So, what do you think?  Should the defendants have retained the right to manual review or should the plaintiffs’ proposed approach have been adopted?  Please share any comments you might have or if you’d like to know more about a particular topic.

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