Privilege Waived? Federal Court Says Don't Blame Your eDiscovery Vendor

http://ow.ly/68GZi

Article by Ben Kerschberg posted by Jeffery Fehrman on EDD Blog Online.

The article illustrates an example where privilege was deemed waived, due to a law firms failure to check a database provided by an eDiscovery services provider, before disclosing information to opposing counsel.  As the article points out,  "In Thorncreek Apartments III, LLC v. Village of Park Forest (N.D. Ill. Aug. 9, 2011), the Northern District of Illinois held that a litigant that was negligent throughout the discovery process and failed “to check the production database created by the [third-party e-discovery vendor] before it went live online and became available to [opposing] counsel” waived privilege with respect to inadvertently produced documents. (emphasis in original). It is noteworthy that the court never called into question the conduct of the e-discovery vendor. Rather, the first line of defense in such cases clearly lies with the litigant who claims privilege."

In this particular case, 159 documents out of 250,000 that had been reviewed were marked privileged, all of them were disclosed.  The counsel receiving the documents sought waiver of privilege as to 6 of the 159, and the court agreed that the privilege had been waived.

Don't blame the services provider...the ultimate responsibility falls on counsel to check the work product they receive from third-party providers.