Judge Grimm Encourages Use of Analytics Software for Privilege Review

Judge Paul Grimm, as discussed in the Tip of the Night for December 31, 2017, has issued several key decisions impacting how electronic discovery is conducted. In 2011, he co-authored an article for the Richmond Journal for Law and Technology, reviewing the impact of the enactment of Federal Rule of Evidence 502 in 2008. See, Paul W. Grimm, Lisa Y. Bergstrom & Matthew P. Kraeuter, Federal Rule of Evidence 502: Has It Lived Up to Its Potential?, 17 Rich. J.L. & Tech 8 (2011), available at: https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1341&context=jolt . Rule 502 concerns the inadvertent disclosure of privileged information, and clawback agreements to arrange for the return of such information.

In addressing whether or not a party may be deemed to have taken reasonable steps to prevent disclosure Judge Grimm quotes the Advisory Committee, " . . . considerations bearing on the reasonableness of a producing party’s efforts include the number of documents to be reviewed and the time constraints for production. Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken 'reasonable steps' to prevent inadvertent disclosure. The implementation of an efficient system of records management before litigation may also be relevant." Id. at 34, quoting Fed. R. Evid. 502(b) advisory committee’s note. Judge Grimm emphasizes that courts must take into consideration the usefulness of analytical methods and sampling in the identification of privileged and protected information. One of the goals of Rule 502 is to reduce the cost of reviewing ESI. "If courts find waiver in cases where parties use computer analytical tools properly, yet the parties’ privileged or protected information nonetheless is disclosed, then lawyers and clients never will transition away from the burdensome and very expensive methods that have lead to 'the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information.'” Id. at 38, quoting Fed. R. Evid. 502 advisory committee’s note.