Grimm's Guide to Asserting Attorney-Client Privilege

Posted on June 12, 2008 by Brian Wm. Higgins

     In Victor Stanley, Inc. v. Creative Pipe, Inc., No. 06-2662 (D. Md. May 29, 2008), U.S. Chief Magistrate Judge Grimm describes the proper means for asserting that documents are protected or immune from discovery because of the attorney-client privilege or attorney work product doctrine. Judge Grimm's explanation comes at the end of his opinion in Victor Stanley, published two weeks ago.

The Issue

     Because a party responding to a Rule 34 request for the production of discovery is entitled to refuse to produce documents if they are privileged or work product protected, Judge Grimm pointed out that the Federal Rules of Civil Procedure require that when doing so, the responding party must “describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” The most common way to do this, he wrote, is by using a privilege log, which identifies

  1. Each document withheld,
  2. Information regarding the nature of the privilege/protection claimed,
  3. The name of the person making/receiving the communication,
  4. The date and place of the communication, and
  5. The document’s general subject matter.

What Really Happens?

     In actuality, Judge Grimm, who in his position as Magistrate referees all kinds of discovery disputes, found that lawyers infrequently provide all the basic information called for in a privilege log, and if they do, it is usually so cryptic that the log falls far short of its intended goal of providing sufficient information to the reviewing court to enable a determination to be made regarding the appropriateness of the privilege/protection asserted without resorting to extrinsic evidence or in camera review of the documents themselves. Few judges, he said, find that the privilege log is ever sufficient to make the discrete fact-findings needed to determine whether a privilege/protection was properly asserted and not waived.

What Should Lawyers Be Doing? 

     According to Judge Grimm, parties should be wary of filing a response to a Rule 34 document production request that asserts privilege/protection as a basis for refusing to make requested production without having a factual basis to support each element of each privilege/protection claimed for each document withheld, because doing so is a sanctionable violation.

     Insuring that a privilege or protection claim is properly asserted in the first instance and maintained thereafter involves a several step process, Judge Grimm wrote.

(1)  First, pursuant to FRCP 26(b) (5), the party asserting privilege/protection must do so with particularity for each document, or category of documents, for which privilege/protection is claimed.

(2)  After that, if the requesting party challenges the sufficiency of the assertion of privilege/protection, the asserting party may no longer rest on the privilege log, but bears the burden of establishing an evidentiary basis–by affidavit, deposition transcript, or other evidence– for each element of each privilege/protection claimed for each document or category of document. A failure to do so warrants a ruling that the documents must be produced because of the failure of the asserting party to meet its burden.

(3)  If the asserting party makes this showing, and the requesting party still contests the assertion of privilege/protection, then the dispute is ready to submit to the court, which, after looking at the evidentiary support offered by the asserting party, can either rule on the merits of the claim or order that the disputed documents be produced for in camera inspection.

Result

     In Victor Stanley, Judge Grimm said that had he not ruled that Defendant's 165 inadvertently produced documents waived the privilege/protection status of the documents, then the effect of a failure by the Defendants to comply with the court’s order regarding the proper manner in which to assert privilege/protection would have warranted an order to produce the materials for failure to carry the burden of demonstrating the existence of the privilege/protection claimed. 

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E-Discovery: Inadvertent Disclosure of Privileged Documents May Waive Attorney-Client Privilege

Posted on June 8, 2008 by Brian Wm. Higgins

     U.S. Chief Magistrate Judge Paul W. Grimm is a leading jurist in the field of electronic discovery. In Victor Stanley, Inc. v. Creative Pipe, Inc., No. 06-2662 (D. Md. May 29, 2008), Judge Grimm discusses the approach the U.S. District Court for the District of Maryland may take when deciding whether the inadvertent production to an adversary of attorney-client privileged or work-product protected materials constitutes a waiver.

Background

     In Victor, the parties entered into a joint protocol to search and retrieve relevant ESI responsive to Plaintiff’s Rule 34 requests.  After the protocol was used to retrieve responsive ESI, Defendants reviewed the documents to locate any that were privileged or attorney work-product prior to production to Plaintiff. Defendants had previously expressed concern that privilege review of the responsive documents would delay production unnecessarily and cause undue expense. To address this concern, Defendants gave their computer forensics expert a list of keywords to be used to search and retrieve privileged/protected documents. However, Defendants also acknowledged the possibility of inadvertent disclosure of privileged/protected documents, and requested that the court approve a “clawback agreement.” Later, Defendants notified the court that because Judge Garbis had extended the discovery deadline by four months, Defendants would be able to conduct a document-by-document privilege review, thereby making a clawback agreement unnecessary.

     After receiving Defendants’ ESI production in September, 2007, Plaintiff began their review of the materials. They soon discovered documents that potentially were privileged or work-product protected, and immediately segregated this information and notified Defendants.

Applicable Law

     As noted by Judge Grimm, courts have taken three different approaches when considering inadvertent production. The Fourth Circuit Court of Appeals has yet to decide which approach it will follow, although individual district courts within the circuit, Grimm notes, have adopted the intermediate balancing approach. Under the intermediate approach, the court balances a number of factors to determine whether the producing party exercised reasonable care under the circumstances to prevent against disclosure of privileged/protected information, and if so, there is no waiver. The intermediate test requires the court to balance the following factors to determine whether inadvertent production of attorney-client privileged materials waives the privilege:

(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 injustice.

     Judge Grimm commented that decisions of the Fourth Circuit suggest that it is inclined to adopt the strict approach. Under the strict approach, there is a waiver because once disclosed there can no longer be any expectation of confidentiality.

Discussion

    Under the strict approach, Judge Grimm found there was no legitimate doubt that Defendants’ production of 165 asserted privileged/protected documents waived the attorney-client privilege and work-product protection.

     However, even under the intermediate test, the result would be the same, he said. Below are some of the key points in Victor.

     Keyword searches: Selection of the appropriate keyword search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology, Judge Grimm wrote. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented. Compliance with the Sedona Conference Best Practices for use of search and information retrieval will go a long way towards convincing the court that the method chosen was reasonable and reliable, which, in jurisdictions that have adopted the intermediate test for assessing privilege waiver based on inadvertent production, may very well prevent a finding that the privilege or work-product protection was waived.

     In Victor, Judge Grimm found that the Defendants failed to demonstrate that the keyword search they performed on the text-searchable ESI was reasonable. Defendants failed to provide the court with information regarding the keywords used; the rationale for their selection; the qualifications of Defendant and attorneys to design an effective and reliable search and information retrieval method; whether the search was a simple keyword search, or a more sophisticated one, such as one employing Boolean proximity operators;  or whether they analyzed the results of the search to assess its reliability, appropriateness for the task, and the quality of its implementation.

     Non-Waiver Agreement: As noted above, Defendants voluntarily abandoned their request for a court-approved non-waiver agreement, and advised the court that they did not need this protection. Instead, they elected to do a document-by-document privilege review. According to Judge Grimm, had Defendants not abandoned their request, they would have been protected from waiver. When they undertook an individualized review of the context-searchable ESI and determined that they could only review the title pages, they neither sought an extension of time from the court to complete an individualized review, nor did they reinstate their request for a court-approved non-waiver agreement, despite their awareness of how it would have provided protection against waiver.

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Maryland's Discovery Communications Looking For Talent

Posted on January 26, 2008 by Brian Wm. Higgins

     Granted, this post isn't directly related to the subject matter of this blog, but since the worldwide headquarters for Discovery Communications is in Silver Spring, MD, and a lot of visitors to this blog are scientists, engineers, and other professionals, I thought I'd pass this along. The Discovery Channel is looking for hosts for "its next long running hit series" called "Hidden Cities." According to a release, show producers are searching for "talented individuals who have a strong background" in any of the following areas: science, engineering, urban water/power/transportation, wilderness survival, do-it-yourself, and animal science. If you've ever watched Danny Forster on Build it Bigger (formerly Extreme Engineering) on Discovery, then you have a sense of what producers are probably looking for. There are several audition tapes on YouTube; this one seems to have the highest "Views" count. 


    


     And, no, I already have a day job.

     FYI, Discovery owns a bunch of patents, including U.S. Patent No. 7,298,851, which is directed to "A method for encrypting, sending and receiving electronic books upon demand."

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