Tip of the Month, March 2011 - Balancing the Costs of Privilege Review with the Risks of Waiver
31 March 2011
Mayer Brown Newsletter
Scenario A large financial institution is responding to discovery requests in connection with an investor suit relating to certain financial products marketed by the institution. To minimize the costs, the financial institution directs its outside counsel to use search terms to identify potentially privileged documents and to limit attorney review to only those documents that hit on the privilege search terms. Later in the litigation, the financial institution seeks to claw back more than 100 privileged documents that were inadvertently produced. Plaintiffs return the inadvertently produced documents, but move to compel their production and the production of all documents relating to the subject matter of those documents. Plaintiffs argue that given the financial institution’s review methodology, the production of the privileged material was not inadvertent and effectively waived protection as to both the specific documents and the subject matter.