Magistrate Judge Paul Grimm of the U.S. District Court for the District of Maryland, a heavyweight in e-discovery circles, cautioned litigants in Victor Stanley Inc. v. Creative Pipe Inc., 250 F.R.D. 251 (2008), that a poorly conceived or cursory privilege review risks waiver when privileged documents are inadvertently produced.[FOOTNOTE 1]
In Victor Stanley, the defendants conducted their privilege review using about 70 different keyword search terms. Defendants manually reviewed those documents returned in the keyword search. As to the remainder of the documents, however, defendants took no steps to assess whether the searches had captured all privileged documents. The result was that defendants inadvertently produced 165 privileged electronic documents.
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