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Judge Rules Privilege Waived on Disclosed Electronic Documents
Posted by Sharon Nelson :: Sensei Enterprises, Inc.
Augusts 21, 2008
On May 29th, Magistrate Judge Paul W. Grimm of the U.S. District Court for the District of Maryland ruled that privilege was waived when defendants disclosed 165 electronic documents to the plaintiff. The case was a copyright infringement suit, and defendants turned over the documents as part of discovery after using keyword searches to identify privileged documents. The court found that because defendants did not demonstrate that their search was reasonable, defendants had waived privilege by disclosing the documents. The court stated that defendants could have showed reasonableness if they had stated why certain keywords were chosen, what the search was supposed to accomplish, and how the search protected against disclosure of privileged materials. In his opinion, Grimm emphasized the problems with keyword searches, including the risk of under-inclusive or over-inclusive terms resulting in privileged information being disclosed, and non-privileged information not being disclosed. These problems demonstrated why the party performing the search needs to present a rationale for the method chosen, show that the search was appropriate for the task, and show that it was properly implemented. The court also explained how to adequately assert privilege under the Federal Rules of Civil Procedure. Grimm explained that the reasons for claiming privilege must be laid out in a privilege log, and that disputes would be settled by an in-camera review of the documents by the courts. The case is Victor Stanley Inc., v. Creative Pipe Inc., and the full opinion may be found here.