“Shoulda, Coulda, Woulda:” Keyword Search for Privileged Documents Insufficient By Itself to Maintain Protection After Inadvertent Production

June 11, 2008

A federal magistrate judge in the U.S. District Court for the District of Maryland ruled that the attorney-client privilege did not protect inadvertently produced electronic documents because the company’s singular use of keyword searches to identify privileged documents did not qualify as a reasonable precaution to prevent disclosure.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 U.S. Dist. LEXIS 42025 (D. Md. May 29, 2008), handed down by Magistrate Judge Paul Grimm, took issue with Creative Pipe Inc.’s use of a 70-keyword search used on text-searchable electronic documents. The keyword search failed to identify several documents subject to the attorney-client privilege – including several communications between the company and its lawyers – and the privileged documents were produced to Victor Stanley. Creative Pipe did not identify for the court the terms it used for the privilege keyword search and did not explain how the list was developed, nor did it identify any “sampling” or any other method used to test the accuracy, scope, and reliability of the keyword search prior to making a production. Moreover, a clawback agreement had not been executed between the two parties, despite the Judge’s willingness to enter such an order. Thus, Victor Stanley asserted that (i) the absence of a clawback agreement; (ii) the voluntary production of privileged documents; and (iii) the lack of reasonable safeguards to prevent disclosure of privileged material effectively waived Creative Pipe’s claim to attorney-client privilege protection. Magistrate Judge Grimm agreed and found that Creative Pipe had failed to demonstrate that the keyword search it performed on the text-searchable electronic documents was reasonable and that the privilege protection had been waived.

Page by page privilege review is the safest method, but is oftentimes cost prohibitive. Keyword searches can be cost saving and effective tools for identifying the potentially privileged documents, but the utmost care must be used in developing, implementing and testing the efficacy of the keyword search. At a minimum, parties should always: 1) have a clawback agreement; 2) have a defensible method for selecting keywords; and 3) test the keyword search results to ensure that they are not over-inclusive or, more importantly, under-inclusive.