Victor Stanley, Inc. v. Creative Pipe, Inc., 2008; Copyright Infringement (E-Discovery)

A defendant’s poorly executed ESI and document review handed the opponent a win in Victor Stanley, Inc. v. Creative Pipe, Inc. Creative Pipe initially had requested a clawback agreement because it had inadvertently handed over privileged documents that it wanted back. Later, to get more time to review documents, Creative Pipe traded off that clawback request. Then, without the clawback protection, Creative Pipe mistakenly turned over 165 documents to its opponent. The documents included communications between the company and its lawyers, which typically are protected by privilege.
Adding to their unfortunate handling of ESI review, Creative Pipe did not identify the keywords used to search, used an “expert” to select the keywords and perform the search whose qualifications were never revealed, and failed to demonstrate quality-assurance testing. When Victor Stanley challenged the search and production, Creative Pipe did not have a reasonable explanation of what they’d done and why it was sufficient.
U.S. Chief Magistrate Judge Paul Grimm ruled that defendant Creative Pipe had no attorney-client privilege in those documents.
Lessons from Grimm’s opinions are
Be able to show your work.
Use a reasonable, transparent, and defensible ESI review methodology.
Find and fix your inadvertent disclosures promptly.
Your counsel should cooperate in attempting to reach non-waiver agreements.

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