The Court of Appeals of North Carolina's decision in Crosmun v. The Trustees of Fayetteville Technical Community College, ___ N.C. App. ___, 832 S.E.2d 223 (2019) provides much needed guidance to North Carolina courts on how to properly craft eDiscovery protocols.
 
The Court of Appeals decision in Crosmun is important because it finally provides guidance to North Carolina courts on how to properly craft electronically stored information protocols while still preserving privileged and confidential information and documents.
 
In Crosmun, the parties were embroiled in a discovery dispute regarding whether the defendants had produced all electronically stored data requested by the plaintiffs in their Requests for Production. The parties were unable to resolve their disagreement, and the issue was addressed by the trial court on a Motion to Compel. The trial court ultimately entered an Order drafted by the plaintiffs in which the defendants were ordered to allow the plaintiffs' expert to forensically examine the defendants' entire computer system via keyword searches for all responsive data. The Order went on to state that all documents that were not identified as privileged pursuant to the keyword searches were to be turned over to plaintiffs without first providing defendants with an opportunity to review them for privilege. This risked the discovery and production of potentially privileged and/or confidential data. Because of the significant risk of the production of privileged and confidential information, the defendants appealed the trial court's Order to the Court of Appeals of North Carolina.
 
Crosmun presented the Court of Appeals with its "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." Up until the Court of Appeals' decision in Crosmun, there was little guidance on how North Carolina courts should craft eDiscovery protocols. The Court of Appeals stated in Crosmun that at that time the "authority regarding eDiscovery is bare bones" insofar as there was "no statute, procedural rule, or decision by this Court or the North Carolina Supreme Court [that] has delineated the parameters of eDiscovery protocols with respect to the protection of documents and information privileged or otherwise immune from discovery." In the absence of binding precedent on the issue of eDiscovery, the Court of Appeals relied extensively on decisions from other jurisdictions and on the Sedona Principles, which "seek to 'serve as best practice recommendations and principles for addressing ESI issues and disputes[.]'" 
 
The Court of Appeals agreed with defendants that the trial court's Order unreasonably risked the disclosure of privileged and/or confidential information and documents. In reviewing the trial court's Order, the Court of Appeals determined that it had two fatal flaws. The first flaw was that it permitted the plaintiffs' expert, and not an independent third party, to directly examine the defendants' entire computer system "absent regard for Defendants' privilege." The second flaw the Court of Appeals identified was that the trial court's Order provided for the delivery of potentially privileged and/or confidential documents to the plaintiffs without allowing the defendants an opportunity to first review them for privilege. Due to these two flaws in the trial court's Order, the Court of Appeals determined that "[i]n both instances, the protocol compels an involuntary waiver, i.e., a violation of Defendants' privilege." The Court of Appeals went on to state that the entry of a Protective Order that contained a clawback provision did not provide sufficient protection to the defendants. On that basis, the Court of Appeals vacated the trial court's Order and remanded it back to the trial court for the entry of a new Order that was consistent with the Court of Appeals' recommendations.
 
After vacating the trial court's Order and remanding this issue back to the trial court, the Court of Appeals then provided guidance to the trial court on how to correct the flaws in its original Order. The Court of Appeals recommended the "commonly accepted approach in other jurisdictions and is consistent with the leading treatise on eDiscovery" that the trial court appoint a special master or independent expert to perform the forensic examination of defendants' computer system. The Court of Appeals also instructed the trial court to allow defendants the opportunity to review the documents responsive to the keyword search prior to the production of responsive information and documents to the plaintiffs. Ultimately, the Court of Appeals stated that the protocol adopted by the trial court must not "deprive the Defendants of an opportunity to review responsive documents and assert any applicable privilege." With this guidance, Crosmun is now the seminal case in North Carolina on the issue of eDiscovery.
 
If you have questions regarding the status of eDiscovery in North Carolina, please feel free to contact a member of Spilman's Technology Practice Group at any time.