Just as it is important to retain and index electronic records that may be necessary for litigation, it is also important to craft e-discovery searches carefully once you're in litigation. Otherwise, you may hand opposing counsel documents you didn't intend for her (or anyone else, for that matter) to see. Computerworld reported on Monday that California-based outdoor furniture supplier Creative Pipe has learned that lesson the hard way:
During the e-discovery process between the two parties..., Creative Pipe allowed an untested keyword search tool to be used by [opposing] lawyers to comb through its electronically stored information... The search uncovered 165 documents of privileged data, including e-mail communications between Creative Pipe and its legal team.
The judge ruled that Creative Pipe had waived attorney-client privilege on those documents because it had not taken "reasonable precautions" to protect them. His problems with Creative Pipe included its abandonment of a request for a "clawback provision" that would have allowed the company to get the documents back without compromising the privilege, as well as its "underestimating the complexity of using keyword search techniques in a legal dispute."
The end result is not good: Creative Pipe's opponent can now use any of the 165 documents as evidence in the case against it.