By Nerino Petro at 9 June, 2008, 9:00 am
The ABA Journal reports here that Creative Pipe Inc. has waived the attorney-client privilege in 165 documents that were turned over to the opposing party by mistake in its pending IP infringement litigation filed by Victor Stanley Inc. According to the article:
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.
It seems a number of factors were at work in this case including poorly defined keywords for the search as well as a failure to properly review documents that were not electronically searchable. The end result was that 165 privileged documents were turned over to the Plaintiff by Creative. Whether or not these documents contain a smoking gun only time will tell As with most things in real life there are no “do overs” and what is done is done. This article continues to reinforce the E-discovery minefield that lays in wait for the unwary practitioner.