Victor Stanley, Inc. v. Creative Pipe, Inc. 250 F.R.D. 251 (D. Md. 2008)

PARTIES PlaintiffDefendant Victor Stanley, Inc. ◦Commercial products include litter receptacles, benches, tables & chairs, picnic tables, ash urns, planters, tree guards, seats, bike racks & bollards. Carefully integrated designs and innovative use of materials and technology embody our commitment to produce durable, strong, functional, attractive and comfortable site furniture. Creative Pipe, Inc. ◦Creative Pipe, Inc. was founded with a mission to provide high quality, progressive site furniture including unfinished furniture, outdoor benches, park benches, outdoor trash receptacles, ash urns, planters, bollards, picnic tables, bicycle racks, bicycle lockers and bicycle wall rack storage.

FACTS PL requested data under Rule 34. Counsel for each party were ordered to meet and confer in order to jointly agree upon a method for ESI to be searched for such Rule 34 data. They settled on a nearly 5 page list of keywords + phrases DF had previously notified the court that individual review of the resulting documents “would delay production unnecessarily and cause undue expense.” To avoid undue expense, DF used a keyword search to try and find any privileged data among data that was to be handed over to PL.

FACTS (Ctd.) Shortly after receiving discovery data, PL counsel began discovering and setting aside documents that were potentially protected by attorney/client privileged or work product doctrine. 165 documents in total. Motion filed by PL seeking a ruling that these 165 documents were not exempt from discovery.

Arguments PL Argument Documents not privileged because turned over under circumstances that waive any such privilege or protected status. DF Argument 165 docs turned over are exempt from use as evidence because they are protected by attorney-client privilege, or work- product doctrine.

Holding Court ultimately held that any privilege that may have existed was waived as a result of the documents production at Victor Stanley’s request. In such situations, the court held, the DF bears the burden of proving that their conduct in retrieving the documents was reasonable. If reasonable, privilege not waived. ◦Here, DF failed to provide the court with any information regarding various aspects of search, including: Keywords used in search, rationale for their use, qualifications of those who selected/designed the search method, etc.

eDiscovery Framework What rules are effected? Rules 16 and 26 – Meet and Confer Rule 34 – Production of ESI Rule 26(b)(5)(B) - Claiming Privilege  Under this rule, if information has already been produced but is being claimed as privileged, the receiving party must promptly return, sequester, or destroy the specified information and any copies it has…producing party must preserve the information until the claim is resolved.

Analysis from eDisc. Perspective What happens when otherwise privileged information is turned over via ESI discovery? Courts are split three ways: ◦1.) Because no knowing and intentional relinquishment = No Waiver ◦2.) Because disclosed, no longer expectation of confidentiality = Waived ◦3.) Balance a number of factors to determine whether the producing party exercised reasonable care, under the circumstances, to prevent against disclosure of privileged and protected information = What court did here

Issues Regarding eDiscovery How is reasonableness determined? ◦Court noted that, “While keyword searches have long been recognized as appropriate…for ESI search, there are well know limitations with them” – “Over/under inclusive” ◦The court went on to list Practice Points 3-7 of the Sedona Conference Best Practices Commentary as a highly useful guide in selecting one’s search method and criteria. ◦The court additionally pointed out that, “Compliance with the Sedona Conference Best Practices guide in the search and retrieval of information will go a long way in convincing the court that the method chosen was reasonable and reliable, which may very well prevent a finding that the privilege or work-product protection was waived.

Outcome When asked, during discovery, to retrieve ESI.. ◦Refer to Practice Points of Sedona Conference Best Practices Commentary ◦Consult with persons qualified to design effective search methodology ◦Test search method with a sample of search results ◦Be fully prepared to explain the rationale of the method chosen to the court, demonstrate that it is/was appropriate, and show that it was properly implemented. Together, these steps will go a long way to later demonstrate the reasonableness of your search.

Questions 1.) Do you agree with the court’s choice of a “middle ground” reasonableness assessment, or do you feel that a more clear-cut waiver policy is called for? 2.) Do you feel that the courts requirement that experts be consulted could prove to be financially burdensome in some situations?