Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008)
In this case, plaintiff sought a ruling that 165 electronic documents produced by defendants were not privileged because their production occurred under circumstances that waived any privilege or protected status. The parties had previously agreed to a joint protocol to search and retrieve relevant ESI responsive to plaintiff’s Rule 34 requests. The protocol contained detailed search and information retrieval instructions, including nearly five pages of keyword/phrase search terms aimed at locating responsive ESI.
In March 2007, defense counsel notified the court that individualized privilege review of the responsive ESI 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 and protected documents from the population of documents that were to be produced to plaintiff, and requested that the court approve a “clawback agreement” fashioned to address the concerns noted in Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005). Later, when the discovery deadline was extended, defense counsel notified the court that defendants would be able to conduct a document-by-document privilege review, thereby making a clawback agreement unnecessary. Following their privilege review, defendants produced responsive ESI in September 2007.