ESI Privilege Log at Issue in Electronic Discovery Dispute
In the case Dornouch Holdings International, LLC v. Conagra Foods Lamb Weston, Inc. (2013 WL 2384235 (D. Idaho)), the district court appointed a Special Master to review the plaintiff ESI production for privilege. After the data was screened and the privilege log was created and served upon the parties, the defendants had a few objections:
- The documents on the log (except for attorney-client communications) had not been established by plaintiffs as privileged
The Special Master agreed with this objection and recommended it be sustained, noting that the privilege is the plaintiffs’ burden to assert and defend under Fed. Rule Civ. Pro. 26(b)(5)(A)(ii).
- The log was created with overly broad search terms (and therefore, non-privileged documents were wrongfully included)
The Special Master and the eDiscovery consultants had gone to great lengths to test and refine the search terms for an accurate production. However, the Special Master noted that some “false positives” or non-privileged documents were likely within the log. The recommendation was that documents and data that had a 59 percent or higher correlation with the privilege search terms should be included on the log.
The Special Master recommended that if the defendants wanted a human review of the data over 59 percent, this would be done, at the defendant’s own expense. If the plaintiffs objected to documents being turned over to the defense that had under 59 percent correlation, they could further review the data at their own expense, as well.
Additionally, the Special Master noted that a “clawback” order be entered to assure plaintiffs that any privileged data inadvertently produced would be returned at once.
- Non-correspondence documents on the log should not be privileged
The Special Master recommended this objection be dismissed, noting that work product was a common form of non-communication data. Common forms of privileged work products are data in TIFF form, Microsoft Word and JPEGs.
In an order dated May 24, 2013, the district court entered the report by the Special Master in its entirety.