Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2010-01-26 12:22:00Format, images and links may no longer function correctly.                 The incredible scope and complexity of modern eDiscovery makes the inadvertent disclosure of unrelated privileged, trade secret or confidential ESI a fact in most modern civil corporate litigation. This keeps inside counsel up at night and drives young associates to drink. Just as all the articles, debate and recent revisions to Federal Rule of Evidence 502 (which covers inadvertent disclosure) were promising some kind of reasonable guidelines, the Supreme Court weighs in with a unanimous ruling that raises the stakes on discovery fights in the Federal courts.

                Mohawk Industries v. Carpenter is Justice Sonia Sotomayor’s first opinion and while it first appears to be a simple procedural issue, it may have far reaching consequences with counsel making risk vs. cost decisions around their discovery efforts. The case involves a dispute over whether privilege waiver and other discovery related district court orders can be appealed during or after the case, whether it qualifies for an interlocutory appeal in lawyer speak. The unanimous opinion found that with some exceptions discovery decisions could only be appealed after the final judgment was rendered.

                This means that in a dispute, you only get one chance to convince the district or magistrate judge to protect your most critical information. The simple fact that you cannot ‘unring the bell’ once the other side has read all about your case strategy or how much you pay your top talent puts the priority on the all important relevance review and technology. Only an item level review supported by search filters and quality checks currently seems to give counsel the illusion that they are doing everything possible to prevent the dreaded disclosure.  This faith in manual, linear review promises to keep associates slamming Starbucks™, despite recent comparative studies like that done by the eDiscovery Institute.

                The ruling also seems to cast a shadow over the new framework for automated categorization of discovery sets proposed by the Hon. John M. Facciola and Jonathan M. Redgrave in the Federal Courts Law Review, Volume 4 Issue 1.  The Facciola-Redgrave framework demands close cooperation between the parties and judicial supervision to work out agreed categorization criteria under the assumption that the new FRE 502 will give sufficient flexibility to retrieve ESI that slip through the net. A weakness to the framework is that it places the bench in the position of having to resolve item level disputes on a regular basis when these adversarial parties disagree. Judges and clerks already carry an overwhelming case load. Asking the bench to do in camera reviews tempts fate and tests the patience of the best jurist, whose decision now cannot be appealed until the first round is over.

                All of this stresses the need to invest in better technology combined with a standardized, quality process that enables counsel to make informed risk decisions and controls cost.

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