Loading ...This essay is about a new case on keyword search and sampling that I recommend you read. It is from West Virginia of all places, which shows that subtle e-discovery arguments and important rulings can now pop up in any jurisdiction, not just N.Y. and D.C.. Mt. Hawley Ins. Co. v. Felman Production, Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010). The Felman opinion has many interesting qualities. (I use Felman as the case name, not Mt. Hawley Insurance, because Felman Production, Inc. is the plaintiff, and the insurance company is an intervenor for another insurance company defendant, who has thereby taken over the lead name, a case style practice I don’t like.) Felman addresses search reasonability in the scary context of privilege and applies Victor Stanley.
Unfortunately, my analysis of Felman brings to mind the title of the famous Western movie: The Good, the Bad, and the Ugly. I would be surprised if the plaintiff’s law firm, Venable, did not agree. The judge concluded that their client, Felman Productions, Inc., waived it’s attorney-client privilege by their negligent search and review. I am not so sure. It looks more like a software malfunction to me.
The Facts
United States Magistrate Judge Mary E. Stanley did a good job overall in this case, especially considering what I suspect are the low number of e-discovery issues heard in her district. The parts of the opinion I don’t like can be explained by the extreme facts (and poor math), so that is where we need to begin.
This is a case for insurance proceeds where the plaintiff responded to defendants’ requests for production by producing over 346 gigabytes of data. Id. at *12. Defendants were not happy about receiving so much information. Instead they complained and called it a “classic document dump.” Id. at *1. But then they searched though the data and found a “smoking gun.” The plaintiff had produced an email to their attorney dated May 14, 2008, actually two versions of the email. After finding the emails, which the plaintiff had listed on its privilege log, the defense did not tell plaintiff’s counsel about it and ask if they wanted it back. This, by the way, is what plaintiff’s counsel later argued, unsuccessfully, they should have done, and were required to do by ABA Model Rule 4.4(b) which states:
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Source: e-discoveryteam.com
By: Ralph Losey
Read the full story originally posted by EDD Blog Online.