International Data Corporation estimates the volume of digital data created globally will grow 40 percent to 50 percent a year, reaching 40 zettabytes by 2020. Managing these growing data volumes during e-discovery is, and will continue to be, extremely challenging and costly. Nowhere is this more evident than in the review of documents for privilege, especially in large cases.

John Facciola, a retired magistrate judge from the District of Columbia, speaking on Exterro Inc.'s recent webcast, Federal Judges Panel: Avoiding Irreversible Mistakes in E-Discovery, estimates that review accounts for about 70 percent of e-discovery costs, and much of that is spent on identifying privileged documents.

Facciola is among a great majority of federal judges who have long pushed parties to take advantage of Federal Rules of Evidence (FRE) Rule 502(d) as a means to ease the privilege review cost burden. FRE 502(d) allows parties to enter agreements during discovery to ensure that if privileged info rmation is unintentionally revealed during e-discovery, it cannot be used against either party. It also prevents both s ides from having to engage in filing motions to get privileged information returned. Judicial support for FRE 502(d) was underscored in a recent survey conducted by Exterro, Federal Judges Survey: E-Discovery Best Practices and Trends. In the report, 45 percent of the participating judges said using the rule was the biggest way parties could cut e-discovery costs.