Using a third-party vendor, Kroll-on-Track, Village collected approximately 250,000 pages of electronic documents using a keyword search on backup tapes. The documents were then uploaded to an online database allowing Village to mark each document as responsive, non-responsive or privileged. Once each of the documents was marked, Village moved them to a folder allowing Thorncreek to review the results. Village included all of the non-responsive documents for Thorncreek to review as well to confirm the review results. In addition, Village mistakenly uploaded 159 privileged documents for Thorncreek as part of the production, which included every document marked as privileged, as it expected Kroll's software to automatically withhold privileged documents. Village did not produce a privilege log. Sometime later, Thorncreek attempted to introduce a privileged document at a deposition to which Village objected and indicated that there may have been an inadvertent disclosure.

In analyzing whether Village waived its claim of privilege with respect to six inadvertently produced documents, the Court noted that simply marking documents as "responsive," "non-responsive" and "privileged" falls "well short of what we would expect for an adequate account of the review procedure." Village argued that its efforts to protect against waiver were reasonable because it believed that by marking the documents as "privileged' in Kroll's online platform, they would be automatically withheld. However, the Court found that Village employed only a single attorney to review the documents to be produced and Village failed to review the documents uploaded for Thorncreek to view for nine months. Finally, the Court cited the lack of a privilege log in finding that Village did not act reasonably to protect its claim of privilege. In doing so, the court held that Village waived privilege to the six documents.

For a copy of the opinion, click here.