Victor Stanley, Inc. v. Creative Pipe, Inc.

Victor Stanley (VSI) (plaintiff) sought electronically stored information from Creative Pipe (CPI) and its principals (defendants) under FRCP 34, and the court ordered both sides' computer-forensics experts to jointly develop a search protocol using roughly five pages of keyword and phrase search terms. The defendants' attorney, deeming a full privilege review of every document unduly burdensome, instead used a keyword list to screen out privileged material before production, but VSI's attorneys discovered 165 potentially privileged or protected documents among what was produced and notified the defendants. VSI moved for a ruling that the documents were discoverable because the defendants had waived any privilege, and the defendants provided no information to the court about which keywords were searched, why they were chosen, who selected the methodology, what type of search was run, or whether the results were tested for reliability.