Last summer, I wrote an lengthy article about the decision in Mt. Hawley Insurance Company v. Felman Production Inc., 2010 WL 1990555 (S.D.W.Va., May 18, 2010), which held that privilege in an inadvertently produced e-mail was waived because counsel’s privilege search was deficient. The article was titled “Bad Facts Make Bad Law,” based on my belief that the waiver finding was driven more by moral outrage than a cold assessment of the facts at issue.
Specifically, as many of you will recall, Magistrate Judge Mary E. Stanley held that counsel, in searching the documents it produced, failed to take reasonable steps to protect privilege—even though counsel engaged in more than 20 different steps to screen the documents. My concern at the time, one which continues to this day, is the impact her decision might have on other cases. Justice for Mt. Hawley might not mean justice for the thousands of other e-discovery cases that are sure to follow.
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