by Mitch Kokai
Senior Political Analyst, John Locke Foundation
After a great opening line — “Seeking justice often involves enduring tedium” — an opinion from a unanimous three-judge panel of the N.C. Court of Appeals tackles an interesting question involving litigants’ access to records stored electronically.
In the immediate controversy, the panel agreed that former employees of Fayetteville Technical Community College should not have access to FTCC’s entire computer system as part of the discovery process in a lawsuit challenging their firings.
Writing for the court, Judge Lucy Inman finds that a lower-court ruling offering that type of access would not work.
We identify error in two interrelated provisions of the Protocol Order. First, it allows Plaintiffs’ expert, rather than an independent third party, the authority to directly access and image the entirety of Defendants’ computer systems absent regard for Defendants’ privilege. Second, it orders the delivery of responsive documents to Plaintiffs without allowing Defendants an opportunity to review them for privilege. In both instances, the protocol compels an involuntary waiver, i.e., a violation of Defendants’ privileges. Because North Carolina law is clear, albeit only in the analog discovery context until now, that a court cannot compel a party to waive or violate itsown attorney-client privilege absent some prior acts constituting waiver or an applicable exception, … those two provisions of the Protocol Order were entered under a misapprehension of the law constituting an abuse of discretion.
Yet Inman notes the importance of addressing “eDiscovery.”
Seeking justice often involves enduring tedium.Many attorneys and judges unsurprisingly consider the discovery stage of civil litigation among the most prosaic and pedestrian aspects of practice. A single page among millions of records, however—even one dismissed as irrelevant by the withholding party—may be considered a “smoking gun” to the party seeking its disclosure. …
… Electronically stored information, or ESI, “has become so pervasive that the volume of ESI involved in most cases dwarfs the volume of any paper records. This makes ESI the driving force behind the scope of preservation and discovery requirements in many cases[.]” …
… This appeal presents this Court with our first opportunity to address the contours of eDiscovery within the context of North Carolina common and statutory law regarding the attorney-client privilege and work-product doctrine.
Inman and her colleagues offer the trial court some suggestions for resolving the dispute, including the possibility of a special master to review the records before any material is turned over to the former employees.
All that is required on remand is that the protocol adopted not deprive the Defendants of an opportunity to review responsive documents and assert any applicable privilege, whether that be through the use of the inexhaustive suggestions enumerated above or some other scheme of the trial court’s own devise.