In a matter before an Illinois District Court, a precedent has been set which sends a shot across the figurative bow of eDiscovery counsel. The case before the Court dealt with alleged building and zoning code violations, and the Court found that defendant unintentionally shared privileged documents with opposing counsel—as well as failed to correct this error in a timely manner. The Court went on to decree that defendants had effectively waived their privilege protections, which ought to get the attention of counsel everywhere.
This decision marks another milestone in the evolution of case law affecting eDiscovery. Simply put, Courts continue to meld traditional notions of fair play into matters governed heavily via electronic data exchange. Better said, Courts continue to heighten their expectations of parties when dealing with eDiscovery, cutting plaintiffs and defendants less slack for the complexities that often accompany large data volumes and/or complex data issues.
The plaintiff in the case (Thorncreek Apartments III, LLC v. Vill. of Park Forest – N.D. Ill. Aug. 9, 2011) sought an appeal to have the Court declare the documents in question, which defendants had inadvertently disclosed, not subject to privilege protections. Just as with traditional litigation concepts involving the failure to act timely in the presence of identified issues, the Court found little sympathy for the defendants who simply took too long to “cure” their own discovery problems. Ultimately, the Court held that the plaintiff’s request to waive privilege was reasonable, as the documents in question were submitted by the defendants some nine months earlier and defendant’s steps to prevent disclosure were “completely ineffective.”
The net effect of this ruling is that a very important protection that could have been afforded to the defendant was waived because that party did not understand (and act timely upon): the fact that it had disclosed privileged information; the need to act timely to keep these data protected (i.e., to “claw” these documents back from opposing counsel); and the need to seek assistance from the Court early and often throughout this process. We can now add privilege waivers to the official list of what keeps eDiscovery counsel up at night…to the extent this item did not already figure prominently in such a list.
Forensic Update 