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In re a Googolplex of Documents

February 9, 2012
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We’ve touched before on the topic of discovery. Like Thackeray’s Vanity Fair, the world of discovery is “not a moral place certainly; nor a merry one, though very noisy.” Often gear–grinding, particularly in an infringement case, and causing both in–house counsel and first–year associates to tremble with fear or collapse from boredom, discovery nonetheless can be the source of endless problems for the unwary litigant.

Hence In re Google, a short denial of mandamus by the Federal Circuit about a tall order: electronic discovery. It seems that Google recorded a final version of a potentially–incriminating email on its privilege log in a dispute with Oracle, but (presumably inadvertently) produced “autosaves” of the email as it was being drafted. After Oracle referenced the email’s substance at a hearing before the magistrate, Google sought to have Oracle return all versions of the email. In response, Oracle moved to compel disclosure of the email on grounds that, notwithstanding its direction to in–house counsel, they were not privileged. The court agreed.

Patently–O has commented that this ruling illuminates the consequences of the “dump–and–recall approach” of ediscovery in patent litigation. We tend to agree. “Claw back” provisions—under which one can always claim later that the document produced should not have been produced—cannot unring the bell. In other words, it is hard for Oracle to unsee what it had seen. Regardless of whether the email was in fact privileged or not, at the end of the day, had it been one of thousands of entries on Google’s privilege log, it is far less likely that that determination would ever have been made by a Court. While we obviously do not countenance spurious claims of privilege, this opinion serves as a reminder that big outcomes can swing on inadvertent missteps in the discovery process. At the same time, we are mindful that discovery can already be a time–consuming—and expensive—process. Seeking to make it error free as well is likely an impossible order.

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