Transcript Victor Stanley, Inc. v. Creative Pipe, Inc. 250 F.R.D. 251

Victor Stanley, Inc.
v.
Creative Pipe, Inc.
250 F.R.D. 251 (D. Md. 2008)
PARTIES
Plaintiff

Victor Stanley, Inc.
◦ Commercial products
include litter receptacles,
benches, tables &
chairs, picnic tables, ash
urns, planters, tree guards,
seats, bike racks &
bollards. Carefully integrated
designs and innovative use of
materials and technology
embody our commitment to
produce durable, strong,
functional, attractive and
comfortable site furniture.
Defendant

Creative Pipe, Inc.
◦ Creative Pipe, Inc. was
founded with a mission to
provide high quality,
progressive site furniture
including unfinished furniture,
outdoor benches, park
benches, outdoor trash
receptacles, ash urns,
planters, bollards, picnic
tables, bicycle racks, bicycle
lockers and bicycle wall rack
storage.
FACTS


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

PL requested data under Rule 34.
Counsel for each party were ordered to meet and confer in
order to jointly agree upon a method for ESI to be
searched for such Rule 34 data.
They settled on a nearly 5 page list of keywords + phrases
DF had previously notified the court that individual review
of the resulting documents “would delay production
unnecessarily and cause undue expense.”
To avoid undue expense, DF used a keyword search to try
and find any privileged data among data that was to be
handed over to PL.
FACTS (Ctd.)

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Shortly after receiving discovery data, PL counsel began
discovering and setting aside documents that were
potentially protected by attorney/client privileged or work
product doctrine.
165 documents in total.
Motion filed by PL seeking a ruling that these 165
documents were not exempt from discovery.
Arguments
PL Argument
• Documents not
privileged because
turned over under
circumstances that
waive any such
privilege or
protected status.
DF Argument
 165 docs turned over
are exempt from use
as evidence because
they are protected by
attorney-client
privilege, or workproduct doctrine.
Holding


Court ultimately held that any privilege that may
have existed was waived as a result of the
documents production at Victor Stanley’s
request.
In such situations, the court held, the DF bears
the burden of proving that their conduct in
retrieving the documents was reasonable. If
reasonable, privilege not waived.
◦ Here, DF failed to provide the court with any
information regarding various aspects of search,
including: Keywords used in search, rationale for their
use, qualifications of those who selected/designed the
search method, etc.
eDiscovery Framework
What rules are effected?
 Rules 16 and 26 – Meet and Confer
 Rule 34 – Production of ESI
 Rule 26(b)(5)(B) - Claiming Privilege
 Under this rule, if information has already been produced but
is being claimed as privileged, the receiving party must
promptly return, sequester, or destroy the specified
information and any copies it has…producing party must
preserve the information until the claim is resolved.
Analysis from eDisc. Perspective
What happens when otherwise privileged
information is turned over via ESI discovery?
 Courts are split three ways:
◦ 1.) Because no knowing and intentional relinquishment
= No Waiver
◦ 2.) Because disclosed, no longer expectation of
confidentiality = Waived
◦ 3.) Balance a number of factors to determine whether
the producing party exercised reasonable care, under the
circumstances, to prevent against disclosure of privileged
and protected information = What court did here
Issues Regarding eDiscovery

How is reasonableness determined?
◦ Court noted that, “While keyword searches have long
been recognized as appropriate…for ESI search, there are
well know limitations with them” – “Over/under inclusive”
◦ The court went on to list Practice Points 3-7 of the
Sedona Conference Best Practices Commentary as a
highly useful guide in selecting one’s search method and
criteria.
◦ The court additionally pointed out that, “Compliance with
the Sedona Conference Best Practices guide in the search
and retrieval of information will go a long way in
convincing the court that the method chosen was
reasonable and reliable, which may very well prevent a
finding that the privilege or work-product protection was
waived.
Outcome

When asked, during discovery, to retrieve ESI..
◦ Refer to Practice Points of Sedona Conference Best
Practices Commentary
◦ Consult with persons qualified to design effective search
methodology
◦ Test search method with a sample of search results
◦ Be fully prepared to explain the rationale of the method
chosen to the court, demonstrate that it is/was
appropriate, and show that it was properly implemented.

Together, these steps will go a long way to later
demonstrate the reasonableness of your search.
Questions

1.) Do you agree with the court’s choice of a
“middle ground” reasonableness assessment, or
do you feel that a more clear-cut waiver policy is
called for?

2.) Do you feel that the courts requirement that
experts be consulted could prove to be
financially burdensome in some situations?