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E-Discovery Disclosure Goof Waived Attorney-Client Privilege, Judge Rules

June 10, 2008

ABA Journal, June 4, 2008

While many of our blogs have been about companies who don’t disclose enough information in the e-discovery process, this one is about a company that did the exact opposite. U.S. Chief Magistrate Judge Paul Grimm ruled that Creative Pipe Inc. did not take the necessary actions to protect attorney-client privileges when the company mistakenly turned over 165 data-sensitive documents in e-discovery. According to Grimm’s decision, the company used untested-keyword searches to separate sensitive documents from the rest.

“All keyword searches are not created equal,” Grimm wrote in the May 29 opinion (PDF). “Any order issued now by the court to attempt to redress these disclosures would be the equivalent of closing the barn door after the animals have already run away.”

According to Grimm, courts have the following approaches that help them determine waiver when e-discovery documents are unintentionally disclosed:

“The intermediate test considers the reasonableness of the precautions taken to prevent disclosure, the extent of inadvertent disclosures, any delay rectifying disclosure, and the overriding interest of justice.”

Consequently to their actions, Creative Pipe failed this on all levels. However, this scenario provided an opportunity that all legal counsel can learn from: the ways in which to explain the procedure that was taken when searching for and disclosing electronic documents.

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