September 4, 2007
Representative Sampling of Privilege Claims
Judge Fallon, who is presiding over the Vioxx MDL in Louisiana, issued an order on August 14 resolving the ongoing and onerous privilege disputes in those cases through sampling. The procedure is very innovative (this may be the first time it has ever been done). As Judge Fallon points out in his opinion, the enormity of discovery disputes in the electronic age requires innovative techniques. I suspect we'll be seeing more use of sampling in discovery the future. You can access a pdf of the Judge's carefully crafted order here. One interesting thing to note: the sampling was not random. Instead, the Special Master, and subsequently the court, reviewed a sample consisting of 2,000 documents chosen by Merck (and a smaller sample of 600 documents chosen by plaintiffs).
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