Victor Stanley, Inc. v. Creative Pipe, Inc.: How to Utilize Rule 502 to Prevent Inadvertent Disclosure and Reduce Discovery Costs in an Age of Electronically Stored Information

Michael J. Christin

In Victor Stanley, Inc. v. Creative Pipe, Inc., 165 documents containing electronically stored information that were potentially attorney-client privileged or protected by the work-product doctrine were inadvertently produced by defendants. United States Magistrate Judge Paul W. Grimm held that defendants waived any privilege or work-product protection for all 165 documents produced. Since Victor Stanley, Congress passed, and President Bush signed, new Federal Rule of Evidence 502, essentially adopting the “intermediate approach” discussed in Victor Stanley for determining whether inadvertent production of privileged or work-product protected materials waived that privilege or protection. Had Rule 502 been adopted prior to Victor Stanley, the parties involved and other similarly situated parties might have avoided the risks of inadvertent disclosure. With Rule 502 in place, parties in federal proceedings can now take the proper steps to avoid inadvertent disclosure of electronically stored information, as well as cut the cost of Rule 34 productions.