|My next two columns address the rapidly growing and complex area of electronic discovery and the issues that surround it. When talking to attorneys who litigate in this field and judges who have presided over cases involving these matters their common theme is that our courts and departments are “all over the place” on these issues. Given the rapidly developing technology of legal practice today that should not be all that surprising. What I hope to accomplish here is to identify and discuss problems and trends that practitioners should be aware of in this really interesting area of practice.
|We begin with the case of Victor Stanley v. Creative Pipe, 250 FRD 251 (D. MD 2008) decided May 29, 2008 and written by the erudite Magistrate Paul W. Grimm. Although it is a federal decision I implore state practitioners to be aware of it and also aware that when a case involves state and federal claims, federal privilege doctrine will control those issues. (See also article written by Messers. Boehning and Toal, NYLJ October 5, 2010.)
|The plaintiff, Victor Stanley, Inc., filed a motion seeking to retain 165 electronically stored documents that were produced during discovery by the defendant. The defendant claims that the information is protected by the attorney-client privilege and the work-product doctrine. Plaintiffs state that there is no privilege because they were produced in a manner in which any possible privilege claim was waived. It is the party which is asserting the privilege that has the burden of proving it.
|After initial discovery responses, each side produced a computer forensic expert to come up with a joint protocol to search and retrieve Plaintiff’s ESI requests. Five pages of keyword/phrases were produced and used to identify responsive material. The defendants then reviewed it to locate material that they deemed to be either privileged, work product protected or otherwise not responsive. Defense counsel also then requested a “claw back” provision in the protocol to protect against items that may have been inadvertently turned over. After a court conference the “claw back” request was withdrawn and substituted with an individual document review prior to turn over. There was some danger here, the court noted, because pursuant to the prior ruling in Hopson v. Mayor of Baltimore, 232 FRD 228 (D MD 2005), when done without court order, inadvertent production of protected information will be deemed as having waived protection.
|After defendant’s production and their review, plaintiff’s counsel identified potentially privileged/protected material and segregated same. Thereafter, defendant changed attorneys and a dispute arose as to how the defendants created their protected document list. The defendants claimed that prior counsel’s forensic expert created an over broad keyword search protocol leading to the turnover of privileged material. Plaintiff vehemently denied this assertion. The issue becomes extremely significant in the light of Hopson and was framed for the court as whether or not under these circumstances the defendant waived any privilege or protection for the 165 documents in question. Until Magistrate Grimm’s decision, there were three separate approaches adopted in various federal districts in determining whether the accidental turnover of privileged material constituted a waiver of same. On one end of the spectrum courts have held there is no waiver because there was no knowing and voluntary waiver; on the other end, there are jurisdictions which hold that there is a waiver because once disclosed, there can no longer be a claim of confidentiality; and what I will call the middle ground: courts make a determination whether the party providing the documents exercised ‘reasonable care’ to prevent disclosure. If the answer is yes, there is no waiver.
|As seen from the facts so far described in Victor, the complexity of electronic discovery has caused attorneys to become directly involved in the review and preparation of the discovery of ESI. The issue has become, then, not only has a party has inadvertently turned over documents that were not covered by the discovery demand and therefore waived the privilege but also potentially one of the invocation of attorney-client privilege by the offending party. That issue has been addressed in the case of Continental Casualty Co. v. Under Armour, Inc.537 F.Supp2d 761 (C.Md. 2008).
|Editor’s Note: See Part II of this article in the April issue of the Nassau Lawyer.
|Arthur M. Diamond is a Supreme Court Justice in Mineola. He welcomes evidence questions & comments and can be reached at firstname.lastname@example.org
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