“Seeking justice often involves enduring tedium.” It’s fitting that North Carolina’s first big legal decision on electronically stored information (“ESI”) begins with this observation. Employment lawyers often lament the tediousness of discovering ESI. But the world of paper discovery has long passed, and the fight is now firmly in the cyber world.
In federal court, there have been rules and precedent to help guide employment attorneys through the ESI maze. Those in state court haven’t been so fortunate. That is until this week. On August 6, 2019, the North Carolina Court of Appeals issued its first substantive decision on ESI in Crosmun v. Trustees of Fayetteville Technical Cmty. Coll. (No. COA18-1054). Judge Inman put it well:
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.
The Court of Appeals ultimately reversed the trial court’s order granting Plaintiffs’ forensic expert direct access to Defendants’ ESI, but the way the Court got there is much more important than the result.
Forced Waiver of the Attorney-Client Privilege and Work Product Privilege is Not Allowed
The Court held that the trial judge erred by giving Mr. Walton—Plaintiffs’ expert—immediate access to potentially privileged documents without giving Defendants a chance to avoid waiver.
The Court held that ordering a forensic examination of a “recalcitrant” party’s data is an appropriate way of resolving ESI disputes. But courts ordering these reviews must be careful with privileges. Yet, the Court stressed that these reviews “may be warranted when there exists some factual basis to conclude that the responding party has not met its duties in the production of discoverable information.”
The Court gave two recommendations for better-balanced protocols. (A) Courts should appoint an independent expert to conduct the examination. (B) Courts should allow the producing party an opportunity—even if limited—to review the search results prior to production for privilege. (C) Courts should provide for the documents produced to be covered by another confidentiality order and that any inadvertent disclosure of privileged documents be subject to a clawback that does not result in waiver.
Takeaways: More Documents Available for Plaintiffs
North Carolina wrongful termination attorneys need sufficient ESI to bring successful cases. Crosmun will be a game changer for how North Carolina employment attorneys go about eDiscovery in state court. The decision will make it easier for employment lawyers to get the documents they need to prosecute their clients’ cases. If employers don’t play ball with ESI, the roadmap is now there to compel serious ramifications.
Reach out for a consultation today.