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Accidentally Waived Privilege: Firm Can't Blame e-Discovery Vendor

By Stephanie Rabiner, Esq. on August 29, 2011 6:46 AM

A litigant may waive privilege when an inadvertent disclosure is made as a result of a failure to check a production database created by an e-Discovery vendor prior to its going live.

In other words, attorneys who fail to double-check production databases and ensure that no privileged documents have been improperly included may be accidentally waiving privilege.

This decision from a federal judge in the Northern District of Illinois means an attorney could open  themselves up to a malpractice suit.

In Thorncreek Apartments III, LLC v. Village of Park Forest, defendant's e-Discovery vendor accidentally included 159 privileged documents, which went unnoticed for 7 months, reports Forbes.

Defendants tried to argue that the inadvertent disclosure did not waive privilege under FRE 502(b) because the e-Discovery vendor should have withheld the documents, which were marked as privileged.

Pointing to the Rule's requirement that the holder of the privilege take reasonable steps to prevent disclosure, the court concluded that litigants waived privilege as to the contested documents because they did not conduct a simple check before production.

With e-Discovery malpractice on the rise, this is a notable conclusion, signaling that some courts won't permit attorneys to shift the blame of inadvertent disclosure to vendors and contractors.

It, along with the McDermott malpractice suit, is also an indication that litigators may need to take more interest in and responsibility for document review and production, engaging in more oversight and implementing more checks.

Inadvertent disclosure has become a big problem, and there is an ethical duty to try and stop it.

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