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A Creative Screening of Electronically Stored Information May Determine the Victor

By Joshua Horn and Beth L. Domenick

For all corporate counsel, the prospect of litigation that requires the preservation, collection, review, and potential production of voluminous electronically stored information ('ESI') can be overwhelming. The time and cost considerations are significant, and many in-house counsel are unsure of the appropriate first steps. One thing is certain: This is not an issue that can be put on the back burner and dealt with in a piecemeal fashion after litigation ensues. The painful results of such an approach were the subject of Magistrate Judge Grimm's recent decision in Victor Stanley, Inc. v. Creative Pipe, Inc., et al., 2008 WL 2221841 (D. Md. 2008).

In that case, the United States District Court for the District of Maryland was forced to decide whether the defendants' inadvertent production of certain categories of ESI waived the protections of the attorney-client privilege and work-product doctrine. After carefully analyzing the events that led to the inadvertent production, the court in Victor held that the defendants waived any claim to attorney client privilege or work-product doctrine protection with respect to the inadvertently produced documents.

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