How “Ridiculous” Productions Can Waive the Attorney-Client Privilege

The ridiculously high number of irrelevant materials and the large volume of privileged communications produced demonstrate a lack of reasonableness.

Robert C. Chambers, United States District Court Judge

Preparing electronic discovery takes careful review and following Judge Grimm’s Victor Stanley checklist.  That did not happen in this case.

The Plaintiffs produced over a million “pages” of ESI, which they marked “Confidential.”  The production included nearly a thousand attorney-client communications.  Felman Prod. v. Indus. Risk Insurers, 2010 U.S. Dist. LEXIS 74970 (S.D. W. Va. July 23, 2010).

The Plaintiffs admitted that nearly 30% of their production was irrelevant.  In the words of the Court, the production included, “car and camera manuals, personal photographs, and other plainly irrelevant documents, including offensive materials.” Felman, at *4.

The Defendants hired a 30 person team to slog through reviewing the Plaintiffs’ production. Felman, at *5.

Clicking through 300,000 irrelevant files probably did not go over well in the accounts receivable meeting with the client.  In theory, if the 30 reviewers were each reviewing 480 records a day, thus a daily total of 14,000 a day, the review team could have spent 21.42 days reviewing all the car manuals and sometimes offensive material.

However, the Defendants’ possible discord and strife in their discovery review was rewarded with the pony they each wanted in early childhood: An email protected by the attorney-client privilege where the Plaintiff admitted 1) they did not have a sales contract regarding an issue in the case and 2) requested attorney advice on they needed to ask customers to backdate contracts for the Plaintiffs’ insurance claim.  Felman, at *4-5.

The Defendants filed counter-claims for fraud and breach of contract within a week of discovering the attorney-client email.  Felman, at *5-6.

Issue:  Did the Plaintiffs waive the attorney-client privilege by failing to take reasonable precautions to prevent the inadvertent disclosure prior to production?

Answer: Yes, especially when the Court calls your production “ridiculous” because of the high number of irrelevant data and privileged files produced.

The Court explained that the large volume of irrelevant data and thousands of privileged files produced showed that the Plaintiffs review and production methodology was not reasonable (which are two factors of the Victory Stanley test).  Felman, at *10-11.

As the Court concluded:

Here, the number of inadvertently disclosed documents was enormous (approximately 30% of more than one million pages) and the number and extent of the attorney-client privileged communications disclosed was also very large (thousands of attorney-client protected communications were produced). These facts, standing alone, weigh heavily in favor of finding: (1) the precautions taken to avoid inadvertent disclosure were unreasonable, and (2) Felman’s attorney-client privilege was waived. Moreover, neither of the additional Victor Stanley factors — the delay, or lack thereof, in taking measures to rectify the disclosure or the overriding interests in justice — are to the contrary.

Felman, at *11.

Bow Tie Thoughts

Parties cannot conduct sloppy review and then try to bomb the opposing side into submission with expensive discovery review costs.  Utilizing technology to defensibly collect relevant data, cull down for responsiveness and conduct meaningful privilege review is essential for effective discovery productions.  Moreover, revenge based productions where a party conducts a data dump on the opposing party may find themselves disclosing confidential information.  Worse, they will lose credibility with the Court by driving up discovery costs.