Ride the Lightning

TOSSING PRIVILEGE OVERBOARD: VICTOR STANLEY V. CREATIVE PIPE

June 6, 2008

It’s the case everyone is talking about. Defendants inadvertently produced 165 documents which they claimed were privileged. The formidable Magistrate Judge Paul W. Grimm has written a thoughtful opinion which truly bears careful study.

In the end, sloppy electronic discovery practices resulted in tossing privilege overboard. Presuming that all the documents were indeed privileged, Judge Grimm examined, in particular:

1) the reasonableness of the precautions taken to prevent inadvertent disclosure;
2) the number of inadvertent disclosures;
3) the extent of the disclosures;
4) any delay in measures taken to rectify the disclosure; and
5) overriding interests in justice

Defendants did a lot of bleating to the court about how lengthy the review process was, the volume of data yada, yada. The usual refrain. But here were some of the points the court obviously found persuasive:

1) Defendants had originally asked for a clawback agreement and then dropped the request, saying that they would be able to do a document by document review.
2) Defendants failed to provide the court with information regarding the keywords used, the rationale for their selection, the qualifications of those who devised the keywords, the methodology of the searching, or whether the results were assessed for reliability and quality.
3) Plaintiffs actually discovered the documents and immediately segregated them and notified the Defendants. Plaintiffs said that the documents were easily identified by using a readily available desktop search tool in about an hour.
4) Quite a number of privileged documents were produced – this was not a instance of a single document which fell through the cracks.
5) Those produced should have been easy to find as many were substantive and comprised of communications between Defendants and their counsel.

The opinion really contains a fairly complete "best practices" protocol for protecting privilege. And a splendid illustration of how to lose it!

The opinion in the case may be found at http://www.mdd.uscourts.gov/Opinions/Opinions/VictorStanley052908.pdf

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