Failure to Test Keywords by Sampling a Prominent Consideration in Court's Finding of Waiver

Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010)

Where plaintiff (Felman Production, Inc.) failed to take sufficiently reasonable precautions to prevent the disclosure of a privileged email, privilege was waived.

In this case, the court addressed a number of issues, including the parties’ compliance with their clawback agreement and the applicability of the crime-fraud exception to 377 inadvertently produced, privileged emails. The primary focus of this summary, however, is the court’s analysis of whether the privilege was waived as to one specific email, “the May 14th email”, and in particular, its analysis of the reasonableness of plaintiff’s precautions to prevent such disclosure.

The May 14th email was inadvertently produced by the plaintiff amidst “a massive disclosure of e-discovery”. Plaintiff learned of the email’s production several months later when defendants attached the email to a motion to amend their answer. Three days later, plaintiff sent a letter noting that the email had been listed on plaintiff’s privilege log and demanding the email’s return. Thereafter, disagreement arose between the parties and the question of waiver was brought before the court.

Taking up the issue, the court first highlighted the five-factor test established in Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008): 1) the reasonableness of the precautions taken to prevent inadvertent disclosure; 2) the number of inadvertent disclosures; 3) the extent of the disclosures; 4) any delay in measures taken to rectify the disclosure; and 5) overriding interests in justice. Next, the court laid out the relevant provisions of Fed. R. Evid. 502(b) and indicated its intent to “apply Rule 502(b), considering Victor Stanley and similar cases as to reasonableness.” The court then quickly determined that the production was inadvertent and that plaintiff promptly took reasonable steps to seek the email’s return. Accordingly, the remaining issue for consideration was the reasonableness of plaintiff’s efforts to prevent such production in the first place.

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Source: ediscoverylaw.com