Victor Stanley (“VSI”) vs Creative Pipe.
Question regards 165 privileged documents that CP allegedly inadvertently produced.
held: privilege waived by the voluntary production
Here’s the kicker: There was a telephone conference discussing a clawback agreement… BUT defendant notified the court: We will be able to conduct a document-by-document privilege review. Defendants abandoned their efforts to obtain a clawback agreement.
Defendants have two sets of ESI: searchable and non-searchable. Privilege term lists created by client and an attorney. Docs that hit withheld. Otherwise, produced. Page by page review by client and an attorney of the non-searchable documents. But, 33.7 GB! Instead of page by page, they just read page titles, if the page title indicated a privileged document, the document was subject to full review. The court tries to makes heads or tails of how the defendant handled the documents, what went wrong, and why.
“court is left to infer” “because the Defendants fail to delineate” “implied conclusion” “limited information” “Defendants are regrettably vague”
unfortunately, the record is lacking
The court expected to see: description of the keywords, how they were developed, how the search was conducted, what quality controls were employed to assess their reliability and accuracy, qualifications for designing a search, and information retrieval strategy
Of note, Judge Grimm suggests: sampling!
McCafferty’s, Inc., v. Bank of Glen Burnie, 179 F.R.D. 163, 167(D.Md.1998)
the test to determine whether inadvertent production of attorney-client privileged materials waives the privilege requires the court to balance the following factors :
(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.
The court finds that defendant failed to provide information regarding: keywords used, rationale behind the words, qualifications of the designers, analysis of results proving reasonable conduct.
“Defendants… bear the burden of proving that their conduct was reasonable for purposes of assessing whether they waived…privilege…”
Court states that there are limitations and risks associated with keywords; selection and implementation involves technical, if not scientific knowledge – eg, computer technology, statistics and linguistics. For lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. Equity Analytics, LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C.2008)
Before dispatching with the rest of the test, Judge Grimm gives some more advice; making it perfectly clear: Use of information retrieval methodology requires the utmost care. Selection of the method requires careful advance planning by persons qualified to design effective search methodology. implementation should be tested for quality assurance. party selecting the methodology must be prepared to
1. explain the rationale for the method chosen to the court,
2. demonstrate that it is appropriate for the task, and
3. show that it was properly implemented
How does defendant perform on the first element of the balancing test? poorly
re: points 2-5 of the balancing test
(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.
this case does not present an instance of a single document slipping through the cracks. the disclosures were substantive… communications between defendants and their counsel. one-week period between production and the time of the discovery by the Plaintiff. Plaintiff is blameless; eg voluntary abandonment of the non-waiver agreement
Wrapping up:
The privilege log was useless; ipse dixit assertions of privilege are not enough. “He, himself, said it”
Pointing out Fed.R.Civ.P. 26(b)(5)(A)(ii)- if you withhold production, you must “describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”
lacking a factual basis to support each element is a sanctionable violation of Fed.R.Civ.P. 26(g) Plaintiff may use these documents as evidence in this case, provided they are otherwise admissible.