Good v. Am. Water Works Co., Inc., Court Will Not Preclude Eyes-On Privilege Review, Leaves Door Open to TAR Only Review

This case is part of the class action litigation involving the Freedom Industries chemical spill that polluted the drinking water for about 300,000 people living in West Virginia. The defendants filed a motion for a Rule 502 (d) order. After attempting to come to an agreement regarding attorney-client and work product information that is inadvertently disclosed, the parties were able to agree with the exception of one issue.

The defendants argued that the Rule 502 (d) order in the case “encourage(s)” the “incorporation and employment of time-saving computer assisted privilege review.” However, the defendants did not wish to give up the option of manually reviewing documents for privilege and work product protection and argued that nothing in Rule 502(d) required such a “commitment.” Conversely, the plaintiffs proposed that the order limit the privilege review to computer assisted review and preclude traditional “eyes on” review completely. The court indicated that the plaintiffs would only agree to a “pure quick peek/claw-back arrangement” that would accelerate their access to documents never reviewed or logged for privilege at the “expense” of the producing party’s ability to protect their client’s privileged and work product information.

The court noted that the defendants preferred the opportunity to conduct an eyes on privilege review prior to “disclosing vast amounts of information” that may contain privilege material. Additionally the court indicated that the defendants desired “a more predictable clawback approach without facing the uncertainty inherent in the Rule 502 (b) factoring analysis.”

The court noted that while the plaintiffs “appear(ed) to recognize” the availability and power of a 502(d) order, they believed it was essential to the efficient progress of the case to receive the ESI materials as fast as possible under Rule 502(b) with its clawback provision providing protection against “misuse of potentially privileged information and communication.” The court further indicated that the plaintiffs saw no reason for any privilege review prior to production but were willing to concede to computer assisted review as was unlikely to result in delays.

The court found that the defendants “cautious” approach was not prohibited by Rule 502 and found their approach reasonable given that they intended to move production forward expeditiously. When entering the 502 (d) order, the court did so 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 the disclosure of the entirety of even the most sensitive categories is accomplished quickly.” However, the court noted that should the plaintiff’s approach lead to an “undue delay” in the progress of the case, the plaintiffs should file motion requesting their approach which the court would hear on a priority basis.

Good v. Am. Water Works Co., Inc., No. 2:14-01374, 2014 WL 5486827 (S.D. W. Va. Oct. 29, 2014)

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