Document Type

Article

Publication Date

2009

Abstract

Managing an efficient, but fair, pretrial process in a large and complex case has always been a challenge. With the advent of electronic communications and the corresponding explosion of privilege claims, this challenge has become significantly more difficult. Indeed, it is not uncommon for corporate parties to assert tens of thousands, if not hundreds of thousands, of privilege claims. Furthermore, the resolution of these privilege questions is often compounded by difficult choice of law questions that can have the result of different substantive principles being applied to identical discovery demands originating in different jurisdictions. Additionally, before addressing the increasingly voluminous and complicated privilege question, many parties often raise other discovery issues that must be resolved before depositions and document production can proceed in a meaningful fashion.

With this increase in the numbers of claims, the privilege resolution process has become significantly more costly. The initial costs in locating documents, assessing their privilege character, preparing privilege logs, and developing evidence to substantiate each claim can be overwhelming. Compounding this effort is metadata underlying most electronic documents that may also contain privileged materials. These enormous costs are further increased when special masters must be appointed to examine the millions of pages of materials that active judges have neither the time nor the paralegal resources to coordinate, review, and individually rule upon.

Through these experiences as a judicial officer over the past thirty years, a number of novel procedures have been employed that proved to be effective case management tools. They saved valuable time and avoided unnecessary expenses while still accommodating the needs of the litigants in preparing their cases for trial on an expedited basis. Therefore, I offer a brief accounting of these procedures and processes in the hope that others might benefit from those experiences.

Comments

Reprinted from 257 Federal Rules Decisions 287 with permission. Copyright © 2009 Thomson Reuters.

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