Applying Evidence Rule 502 and Five Factor Test, Court Determines No Waiver
Electronic Discovery Law:
Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 2008 WL 4916026 (E.D. Pa. Nov. 14, 2008)
In this breach of contract case, plaintiff Rhoads Industries, inadvertently produced over eight hundred privileged, electronic documents. Defendants filed a motion to deem the claim of privilege waived arguing that plaintiff’s production was careless, that its response in seeking the return of the documents was delayed, and that it failed to produce complete and accurate privilege logs as to those documents.
In February 2007, Rhoads began preparing for its anticipated litigation against Building Materials Corporation of America. Realizing the likelihood of extensive electronic discovery, Rhoads directed its IT consultant to research software to assist with the electronic discovery effort. The IT consultant eventually purchased Discovery Attender (or “Sherpa”) to perform the necessary electronic data searches. Shortly thereafter, the IT consultant and his team began work to identify locations of potentially relevant information.
Shortly after discovery began, Rhoads’s counsel met to discuss the scope of discovery and the search terms to be used. Using terms received from Rhoads’s attorneys, the IT consultant identified a large volume of potentially responsive documents. He then ran a keyword search intended to filter the privileged material and removed those documents from the group. The search was run a second time to verify its accuracy. The documents identified by the search were not placed on a privilege log.
Given the large volume of documents remaining even after removing materials hit by the privilege search, Rhoads’s counsel modified the original search terms and reduced the volume of potentially responsive documents to 78,000. Because of the prior privilege keyword search, Rhoads believed there were no privileged materials in that remaining group. Rhoads’s counsel then manually reviewed a separate group of emails from specific accounts, as well as 22 boxes of hard copy…