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No longer is the gentlemanly wink and nudge over the inadvertent production of privileged material the norm. In my past experience, lawyers went as far as forgoing the privilege review with the understanding that any privileged material could be ''clawed back'' if turned up or that opposing counsel, in an act of juris doctor solidarity would return the documents pretending to have never seen them.
No longer so in federal court, as the Law.com recently addressed, pointing to the seminal case of Victor Stanley Inc. v. Creative Pipe Inc. and admonishing attorneys to mend their lackadaisical discovery ways.
In short, a large portion of conducting e-discovery involves the back and forth between counsel relating to the setting of and agreement to certain search terms when reviewing ESI. These terms define the parameters of the search and often times are used when culling out privileged documents. Testing is conducted on sample portions of the document pools to determine whether the terms are being adhered to as well as whether they are sufficient in terms of the discovery requests at hand.
In the Victor Stanley case, due to oversight (a euphemism for stupidity) counsel for defendants did not run the searches that pertained to the privilege review on their entire universe of responsive documents and thus produced some 165 privileged documents to the plaintiff.
The aptly named Magistrate Judge Paul Grimm was not sympathetic. As Law.com stated:
As defendants were unable to defend the validity of the methodology they had adopted to identify privileged documents and failed to conduct any tests of its reliability, Grimm unsurprisingly found that defendants had not taken reasonable precautions to prevent inadvertent disclosure and found the privilege to have been waived.
Since this 2008 decision, little has change with the exception that if courts approve parties can agree in advance to ''claw back'' terms. This was enacted to cut down on the expense of pre-discovery expense related to the above referenced testing. Absent an agreement though, the situation remains the same. As usual, the solution is to be proactive, bone up on the federal rules regarding e-discovery and keep abreast in its developments.
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