Slowly but surely, U.S. Magistrate Judge Paul Grimm is writing a treatise on electronic discovery. In Hopson v. Mayor and City Council of Baltimore,[FOOTNOTE 1] he tackled privilege waiver and warned litigants about the risks of so-called “quick peek” and “clawback” agreements. And in Lorraine v. Markel Amer. Ins.,[FOOTNOTE 2] he reminded lawyers to think critically about the admissibility of electronically stored information. In his latest ruling, Victor Stanley Inc. v. Creative Pipe Inc., 2008 WL 2221841 (D. Md. May 29, 2008), Magistrate Judge Grimm revisits the privilege waiver issues at the heart of Hopson and wades into the debate over search methodologies. In the end, his privilege ruling is no surprise and his comments on search methodologies will do little to calm those who are concerned that recent decisions could require litigants to hire experts to defend their chosen search methodology.
In Victor Stanley, the plaintiff sought a ruling that the defendants had waived privilege over 165 electronic documents inadvertently produced during discovery. At the outset of discovery, the parties and their computer forensic experts had met to identify a joint protocol for the search and retrieval of responsive electronic documents. Defense counsel, faced with a substantial amount of electronic data to review, originally requested a “clawback agreement” designed to address the concerns that Grimm discussed in Hopson.[FOOTNOTE 3] When discovery was extended, however, the defendants made the fateful decision to drop this request, instead opting to conduct a full-fledged privilege review.
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