Victor Stanley, Inc. v. Creative Pipe, Inc.

Brief Fact Summary.

When Victor Stanley, Inc. (VSI) identified 165 documents subject to attorney-client privilege or work product protection developed by Creative Pipe, Inc. (CPI), VSI moved for a ruling that the electronically stored information was discoverable because the defendants waived their privilege

Synopsis of Rule of Law.

A party waives attorney-client privilege and work-product doctrine by providing privileged documents due to inadequate search and retrieval methodology.

Facts.

Victor Stanley, Inc. (VSI) sued Creative Pipe, Inc. (CPI) and Mark and Stephanie Pappas. VSI sought production of electronically stored information. VSI was ordered to develop a search and retrieval methodology by which the defendants could access electronically stored information. During review of the documents produced, VSI’s attorneys identified 165 documents subject to attorney-client privilege or work product protection. VSI moved for a ruling that the electronically stored information was discoverable because the defendants waived their privilege.

Issue.

Whether a party waives attorney-client privilege and work-product doctrine by providing privileged documents due to inadequate search and retrieval methodology?

Held.

Yes. All 165 documents are discoverable and may be used by VSI because the defendants have not met their burden of proving they have acted reasonably in designing the search and retrieval methodology.

Discussion.

A party waives attorney-client privilege and work-product doctrine by providing privileged documents due to inadequate search and retrieval methodology. The responding party, in this event, the defendants, have the burden of proving that they acted reasonably in order for the court to determine whether they waived attorney-client privilege and work-product doctrine.