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Victor Stanley, Inc. v. Creative Pipe, Inc.
United States District Court for the District of Maryland
250 F.R.D. 251 (D. Md. 2008)
Victor Stanley, Inc. (VSI) (plaintiff) sued Creative Pipe, Inc. (CPI) and Mark and Stephanie Pappas (defendants). VSI sought production of electronically stored information (ESI) pursuant to Federal Rule of Civil Procedure (FRCP) 34. The trial court ordered VSI and the defendants to have their computer forensic experts consult and develop a joint protocol by which the defendants would search for and retrieve the requested ESI. The joint protocol included about five pages of keyword and phrase search terms, along with the instructions for search and retrieval. The defendants’ attorney indicated that privilege review of each document would be unduly burdensome and thus provided a list of keywords to search for privileged documents amongst the documents to be produced. However, during review of the documents produced, VSI’s attorneys discovered 165 documents potentially subject to attorney-client privilege or work product protection. VSI’s attorneys notified the defendants. VSI moved for a ruling that the ESI is discoverable, because the defendants waived any privilege or protection. The defendants did not provide the court with: the keywords searched; why they were selected; the qualifications of those who selected the search and retrieval methodology; the type of search, such as plain keyword or Boolean search; whether results were analyzed to test the methodology, its reliability, and its appropriateness; or the quality of the search itself in response.
Rule of Law
Holding and Reasoning (Grimm, J.)
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