Discovery: Mistakes Happen … and don’t trust the software

There has been a fair amount of comment on Rhoads Industries v. Building Materials Corp. (No. 07-4756 (E.D. Pa. Nov. 14, 2008) in which Judge Michael M. Baylson of the Eastern District of Pennsylvania issued the first opinion to apply the newly enacted Federal Rule of Evidence 502.  For the case click here, and for the Judge’s clarification click here.  For some of the commentary click here, here, here and here.

Baylson held that Federal Rule of Evidence 26(b)(5)’s mandatory logging requirement for privileged materials also mandated that any privilege be waived for the 110 electronic files not logged within three weeks of receiving an alert. However, the judge held that privilege was not waived for the 215 e-files logged via manual review within the three-week window, reasoning that the disclosure was inadvertent and, while its steps to prevent disclosure and rectify error were not reasonable, the interests of justice nevertheless favored Rhoads Industries.

Today’s National Law Journal has a further analysis which we found interesting, especially how the electronic discovery software program designed to identify responsive e-mails and screen for privilege did not work just quite right.  For the full article click here.