This post was also written by Steven B. Roosa.
On May 29, 2008, the U.S. District Court for the District of Maryland issued a lengthy and noteworthy ruling regarding the discovery of “electronically stored information” or “ESI.” The court held that the defendants waived the attorney-client privilege and work-product doctrine with respect to 165 separate documents. See Victor Stanley Inc. v. Creative Pipe Inc., Civil Action No. KJG-06-2662, 2008 WL 2221841 (D.Md. 2008). The case is particularly instructive because it describes in detail the multiple steps that a litigant should take in order to (1) protect against the inadvertent disclosure of privileged ESI; (2) preserve the privileged status of ESI in the event that it is inadvertently disclosed; and (3) defend the methodology used to search for relevant ESI.
I. Why Did The Court Find The Defendants Had Waived Privilege?
Prior to the dispute, the plaintiff objected to the sufficiency of “paper” discovery and sought the intervention of the court to compel the production of additional discovery in the form of ESI. The court granted the plaintiff’s request. In response, the defendants requested that the court approve a “clawback agreement” that would allow the defendants, in the event of inadvertent disclosure of privileged material, to have the material returned and the privilege preserved. The defendants, however, subsequently abandoned their efforts to obtain the “clawback” agreement, believing that they had sufficient time to conduct a “document-by-document” privilege review. Id.
Tens of thousands of documents were generated by the initial search, a fairly insignificant amount of data by today’s standards. The defendants, however, ultimately conducted their privilege review using additional keyword searches and by reviewing the page titles of documents only, instead of reviewing the documents in their entirety. Id. at 2. As a result, the defendants inadvertently produced 165 documents that the plaintiff, upon receipt, readily determined might be subject to privilege. Id. at 3. The plaintiff proceeded to file a motion asking the court to declare that the items were not exempt from discovery.
The court, in granting the plaintiff’s motion, ruled that the defendants had waived the attorney-client privilege, as well as the work-product doctrine, with respect to all of the 165 documents. The court found that the defendants failed to take reasonable precautions to prevent the inadvertent disclosure of privileged data because the defendants, to their detriment:
- Selected search terms for their privilege review on an ad hoc basis
- Were unable to identify for the court the precise search terms used in their privilege review
- Failed to test the reliability of their chosen search terms and failed to exercise quality control or conduct sampling of the data
- Failed to provide the court with information regarding the rationale for the selection of the search terms
- Failed to provide the court with the qualifications of the individuals who constructed the search protocol
- Failed to prepare an adequate privilege log as required by the court rules
The court noted that the defendants bore the burden of proving that their privilege review was reasonable and had obviously fallen far short of meeting that burden.
II. Why Did The Court Find The Defendants’ Search Methodology Inadequate?
The court also criticized the defendants’ use of keyword searches, finding that it fell woefully short of establishing reasonableness:
While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well known limitations and risks associated with them. . . .
Id. at 5 (citing United States v. O’Keefe, 537 F.Supp.2d 14, 24 (D.D.C. 2008) (“Whether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics…. Given this complexity, 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.”))
The court observed that designing adequate search protocols “involves technical, if not scientific knowledge” that demanded familiarity with “the sciences of computer technology, statistics and linguistics.” Id. at 5. Offering some guidance, the court instructed that compliance with The Sedona Conference Best Practices for use of search and information retrieval “will go a long way towards convincing the court that the method chosen was reasonable and reliable.” Id. at 26.
The court observed that designing a computer-assisted privilege review “requires the utmost care in selecting [a] methodology that is appropriate for the task,” “careful advance planning by persons qualified to design [an] effective search methodology,” “test[ing] for quality assurance,” and keeping a paper trail so that the search protocols can be explained to a court in the context of future discovery disputes. Id. at 6. In other words, experienced assistance is needed so that the party facing a challenge to its retrieval methods can establish that the methods are defensible and in accordance with the literature describing the strengths and weaknesses of various methodologies, such as The Sedona Conference Best Practices.