The buck stops here.

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.

Looking forward, the necessary re-review of any production database may involve tens of thousands of documents marked as privileged. In this case, a lengthy review of 250,000 documents yielded 159 documents claimed as privileged, all of which were produced inadvertently.

Are These Privileged?     Source: ozdox.com.au

(Such a review thus would have been easy.) However, the set of documents that might be turned over to opposing counsel is as voluminous as those designated as privileged or otherwise non-responsive. The risks are real; the responsibility imposed on counsel will require serious effort; and the stakes are enormous.

The district court agreed with the plaintiff’s request for an Order finding that six of the 159 documents produced inadvertently by the defendant were not protected from disclosure and that privilege had thereby been waived.

Electronic discovery here was conducted by a major vendor and proceeded in three steps:

Backup tapes were searched based on parameters agreed upon by both the parties and, in some cases, ordered by the court.

The vendor placed the documents into an online database where they were secured for the defendant’s sole use. The defendant then designated them as privileged, responsive, or non-responsive.

The vendor placed those documents labeled for production into a database where the plaintiffs could review them.

via Privilege Waived? Federal Court Says Don’t Blame Your Electronic Discovery Vendor – Forbes.