ComputerWorld reports that a loss of attorney-client privilege resulted from a number of factors:

In the decision, Grimm criticized Creative Pipe for failing to take the necessary steps to ensure the privacy of its data, and for underestimating the complexity of using keyword search techniques in a legal dispute.

“The Defendants are regrettably vague in their description of the seventy keywords used for the text-searchable ESI privilege review, how they were developed, how the search was conducted, and what quality controls were employed to assess their reliability and accuracy,” wrote Grimm in his opinion.

Grimm said that Victor Stanley can use information that was mistakenly disclosed by Creative Pipe as evidence in its lawsuit. “Defendants’ protests that they did their best and that their conduct was reasonable rings particularly hollow,” he noted.

I wonder how accidental disclosure was handled in the past. This is an excellent example of how technology has fundamentally changed privacy, and an even better example of how lawyers alone (e.g. litigation) will be able to control privacy. Obviously the use of “complex” search terms coupled with technology has fundamentally altered the practice of disclosure. Who will be found at fault here? Could it be the forensics expert(s) who setup and created the search? Perhaps it will be the lawyers that failed to catch privileged documents before they were accidentally disclosed? Will it be the management team that abandoned “clawback” rights in exchange for time to “prepare” documents? Or all of the above….?