Not sure why but I received a client alert bulletin from one of the ALM top 10 firms [I am not a client and have been adverse to this firm many times]. The bulletin advised me about how a district court had recently slammed a defendant and its counsel over a privilege waiver battle. Apparently defendant's counsel had inadvertently produced 165 electronically stored privileged documents.
As described, the saga involved defendant's counsel first negotiating a clawback provision [this is something that should be SOP for everyone involved in large document productions - it is a money saver and a tremendous protective shield] but then deciding that they could review the documents and produce them without one [why they didn't do both is beyond me]. They purportedly did key word searches and somehow their searches failed to alert them to the 165 documents that were inadvertently produced.
The district court, quite rightly, held that this was not excusable inadvertence and held that they had waived their privilege.
Maybe defendant's counsel could have presented a fuller record as to how they were diligent, but the short of this is that - you can go out and pay big bucks to e-discovery software companies or pay for an additional layer of supposed e-discovery lawyers [every large firm seems to be creating one] in addition to your litigation counsel or you can do some simple things - like always demanding a clawback agreement.
Such an agreement provides that regardless of the question of inadvertence and whether it was excusable or not, production of privilege material will not be waived if it comes to the attention of producing counsel that a privileged document has been produced and they timely request its return. How simple can that be? You are protected from your opponent ever introducing privileged materials that for whatever reason you fail to intercept in your initial production.
Finally, if you want to nip production of privileged documents in the bud actual review of the documents is a must - key word searches and expensive discovery software systems just don't cut it. The case is Victor Stanley, Inc. v. Creative Pipe, Inc., et al., Case No. MJG-06-2662 (D. Md.) by the way.