PANGEA3 LLC

Craig Ball wrote a terrific blog piece on June 6th about the Victor Stanley Inc. v. Creative Pipe Inc. decision from the Eastern District of Maryland. Magistrate Judge Paul Grimm found that the defendants waived the attorney-client privilege for 165 “inadvertently” produced documents because they relied on keyword searches and a review of document title pages as their privilege review. Furthermore, the defendents failed to get a clawback agreement with opposing counsel before producing the documents. Unfortunately, Creative Pipe was unable to rationalize to the Court why they believed keyword and document title searches were sufficient methods to meet their professional responsibilities. As a result, Creative Pipe became yet another party injured by insufficient preparation by failing to concentrate on document review workflow and processes.

Craig’s blog focuses on the need for better keyword search techniques and he provides valuable lessons (reminders?) for all practitioners – “Get expert help, Collaborate on search methods, Test your searches, Check the discard pile, and Get that clawback agreement.”

But I believe that process is just as important as keyword search effectivness in this case. It’s not enough to know your methods work, you have to be able prove it too.

Ensuring that your document review workflow and processes are effective is critical to any document review Quality Assurance process, whether at the outset of a review when culling non-responsive documents from a document collection or when identifying privileged documents. In each case, you should test the accuracy of your search strategy by checking for false positives and for false negatives. Perfection isn’t required nor should it be the goal. But Courts will expect attorneys to take some reasonable steps to assure themselves that what they’re doing actually has some reasonable connection to what is expected. Don’t just take my word for it:

“Defendants do not assert that any sampling was done of the text searchable ESI files that were determined not to contain privileged information on the basis of the keyword search to see if the search results were reliable. Common sense suggests that even a properly designed and executed keyword search may prove to be over-inclusive or under-inclusive, resulting in the identification of documents as privileged which are not, and non-privileged which, in fact, are. The only prudent way to test the reliability of the keyword search is to perform some appropriate sampling of the documents determined to be privileged and those determined not to be in order to arrive at a comfort level that the categories are neither overinclusive nor under-inclusive. There is no evidence on the record that the Defendants did so in this case.” Mem at 11-12.

The irony of is case is that Magistrate Judge Grimm suggested that the majority of the documents were not in fact privileged anyway! Thus another important lesson learned from Victor Stanley is the importance of memorializing your keyword strategies and documenting the execution your strategies. So when it is time to provide that affidavit, you’ll have everything you’ll need and you can avoid having to read something like this:

“Defendants are regrettably vague in their description of the seventy keywords used for the text-searchable ESI privilege review, how they were developed, how the search was conducted, and what quality controls were employed to assess their reliability and accuracy. While it is known that M. Pappas (a party) and Mohr and Schmid (attorneys) selected the keywords, nothing is known from the affidavits provided to the court regarding their qualifications for designing a search and information retrieval strategy that could be expected to produce an effective and reliable privilege review.” Mem. At 11.

As Craig Ball notes, “[a]voiding privilege waiver is a powerful incentive to” follow this advice.