In re Coventry Healthcare Inc., 2013 WL 1187909 (D. Md. Mar. 21, 2013).
In this ERISA case, the plaintiffs moved to compel the production of requested electronically stored information (ESI) over the defendants’ objection that the production would outweigh its potential benefit to the plaintiffs. Specifically, the defendants claimed the cost of processing, hosting and reviewing the “hits” from the plaintiffs’ key words (200,000 documents) for privilege and responsiveness would be cost-prohibitive at $388,0-00. Drawing from former Magistrate Judge Grimm’s reasoning in Hopson v. Mayor & City Council of Baltimore, the court addressed “the more practical approach” of lessening the burden of a production “by entry of a court order with a clawback provision that protects against a claim of waiver by production of a privileged document.” Noting that such a clawback agreement would alleviate costly privilege review for the defendants, the court granted the plaintiffs’ motion to compel and carved out an option for the defendants to seek a clawback order after conferring with the plaintiffs.