E-Discovery Disclosure Goof Waived Attorney-Client Privilege, Judge Rules

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E-Discovery Disclosure Goof Waived Attorney-Client Privilege, Judge Rules

Posted Jun 4, 2008, 06:12 am CDT
By Debra Cassens Weiss

A federal magistrate in Baltimore has ruled a company sued for infringement has no attorney-client privilege in 165 documents mistakenly turned over to its opponent in e-discovery.

The documents included several communications between the company Creative Pipe Inc. and its lawyers.

U.S. Chief Magistrate Judge Paul Grimm ruled Creative Pipe had failed to demonstrate it took reasonable precautions to prevent disclosure when it used an untested keyword search to find potentially privileged documents. Lawyers told the Maryland Daily Record the opinion provides a cautionary tale to litigants.

“All keyword searches are not created equal,” Grimm wrote in the May 29 opinion (PDF). “Any order issued now by the court to attempt to redress these disclosures would be the equivalent of closing the barn door after the animals have already run away.”

Creative Pipe had requested a clawback agreement entitling it to retain the privilege on documents inadvertently disclosed, but abandoned the request when it was allowed four additional months for discovery. The company said the time would make it possible to conduct a document-by-document privilege review, according to the opinion.

Creative Pipe’s e-discovery expert had used about 70 keywords to find documents submitted to the company’s former lawyers for a privilege review. Documents that were not text-searchable were submitted to the lawyers for individualized review, but because of time constraints, the lawyers only looked at the document titles, the opinion says. Those that appeared to raise privilege issues were then read individually. At the time, the company was represented by lawyers from Meyer, Klipper & Mohr.

Grimm wrote that the defendants were “regrettably vague” in their description of the 70 keywords and said a growing body of literature highlights the risks of unreliable keyword review. The defendants did not sample the documents produced, “the only prudent way to test the reliability of the keyword search,” Grimm wrote.

He noted that courts have used three approaches to determine waiver when e-discovery documents are inadvertently disclosed, and said Creative Pipe fails both the strictest and an intermediate test that balances a number of factors.

The intermediate test considers the reasonableness of the precautions taken to prevent disclosure, the extent of inadvertent disclosures, any delay rectifying disclosure, and the overriding interest of justice.

“In this case, the defendants have failed to demonstrate that the keyword search they performed on the text-searchable [electronic evidence] was reasonable,” Grimm wrote. “Defendants neither identified the keywords selected nor the qualifications of the persons who selected them to design a proper search; they failed to demonstrate that there was quality-assurance testing; and when their production was challenged by the plaintiff, they failed to carry their burden of explaining what they had done and why it was sufficient.”

Grimm also noted this was not a case of one document slipping through the cracks, and the privileged documents that had been disclosed included e-mail communications between the defendants and their lawyers. He also said it was noteworthy that it was the plaintiffs that brought the disclosure to the court’s attention.

Jason Baron, director of litigation at the National Archives, told the Daily Record that “what Judge Grimm has done is give a roadmap to lawyers in the United States on how to present to a court how they went about searching for relevant documents.” Baron was the editor for a Sedona Conference Best Practices Commentary on e-discovery that was cited in Grimm’s opinion.

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Posted by associate - 4 months, 1 week, 13 hours, 13 minutes ago

I don’t see this doing much to speed up discovery, ensure that all relevant information is turned over, and reduce the costs of litigation.
Posted by Kelly Young - 4 months, 1 week, 4 hours, 9 minutes ago

This is a major step forward in terms of both cost reduction and quality control. Traditional review has been shown over and over to be an expensive solution that doesn’t perform well. Instead, Grimm points the parties to The Sedona Conference and TREC, which is setting performance standards for information retrieval. And Grimm, as well as Judge Facciola in the opinions that Grimm cites, connects the problem of electronic discovery with the need for scientific expertise. If litigators follow Grimm’s advice and leverage linguists and statisticians in their e-discovery, they can be sure to get better results on which they can practice law instead of managing document reviewers.
Posted by Richard - 4 months, 5 days, 10 hours, 11 minutes ago

For a good analysis of the opinion and what it means for conducting doc reviews, look here: http://www.h5technologies.com/pdf/More_Defensible_Document_Review.pdf
Posted by Sean H. - 4 months, 5 days, 7 hours, 26 minutes ago

This, in my opinion, is an unfortunate decision. It truly misses the point on e-discovery--that is to provide the opposing party their discovery materials quickly and thoroughly. We just had a case out of California that shows the pitfalls of being too stingy in what you disclose. Now, we find that you can’t over disclose either without risking losing some privileges. Never before had an inadvertent disclosure been held to waive privilege. But for some reason, we believe that because it is done as a matter of electronic discovery, that is somehow different. When our next major technological advance occurs, if we stay on this slippery slope, we will find ourselves holding that there are no privileges simply because technology is different than when the privileges were put into place.
Posted by Ralph Losey - 4 months, 5 days, 6 hours, 19 minutes ago

If you carefully read the whole opinion, you see many equity drivers behind this finding of waiver, including the two emails alleged to be outside of privilege due to fraud, the refusal to enter into a clawback agreement, and the refusal to disclose the 70 search terms. If you look at the docket and other filings, including the Rule 11 motion and P’s discharge of multiple attorneys, you see many more. I strongly suspect that there is much more to this story than meets the eye, and will wait for future rulings before I attempt a complete analysis. In the meantime, this case serves as a useful guide for how to demonstrate honest efforts to be “quick and thorough” in providing discovery materials as Sean above states. If you are indeed thorough, and honest, and not just trying to play games with the system, this opinion can help you, and protect against waiver.
Posted by Tropicana - 4 months, 2 days, 8 hours, 55 minutes ago

As for the refusal to disclose the 70 search terms, the disclosure of the search terms, to me, would involve yet another privilege: work product. I’m sure I’m not the only person who can imagine the opposing party making use of the search terms selected for purposes completely unrelated to the question of whether or not attorney client privilege should be waived for those specific documents.

I can see the opposing party taking specific search terms that were clearly applied in such a way as to exclude certain documents and then seeking supplemental discovery to obtain those very documents. The opposing party might also take those search terms used (whether for inclusion or exclusion) and assert that taken together they poke holes in the validity or strength of arguments asserted by the disclosing party to the Court (whether re discovery disputes or re the merits themselves). In short, forcing them to reveal those search terms to decide whether there is a waiver of attorney client privilege effectively forces that party to waive attorney work product in doing so.

-T

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