Showing 278 of 278 results

Chapter: 27.2

Case Name: Harleysville Ins. Co. v. Holding Funeral Home, Inc., Case No. 1:15cv00057, 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)
(finding that Harleysville's parent company waived both its privilege and its work product protection by sloppily loading privileged and work product-protected documents to a publicly available internet site; also relying on Virginia Bar legal ethics opinions in describing defendant's lawyer's obligation to have stopped reading the documents upon noticing that they were protected, but not disqualifying defendant's lawyer; "The Virginia Supreme Court addressed the difference between involuntary and inadvertent disclosures of privileged information in Walton [Walton v. Mid--Atl. Spine Specialists, 280 Va. 113, 694 S.E.2d 545, 549 (Va. 2010)]. . . .'..[I]n the waiver context, involuntary means that another person accomplished the disclosure through criminal activity or bad faith, without the consent of the proponent of the privilege. . . .'. . . Inadvertent disclosure, on the other hand, includes action by the proponent of the privilege to knowingly, but mistakenly, produce a document or to unknowingly provide access to a document by failing to implement sufficient precautions to maintain its confidentiality. . . . The court further reasoned that the determination of whether a disclosure was involuntary does not rest on the subjective intent of the proponent of the privilege."; "Harleysville has conceded that its agent, Cesario, an employee of its parent company, intentionally and knowingly uploaded its Claims File to the Box Site. Under these facts, I find that the disclosure was not involuntary but, rather, was inadvertent under Virginia state law, in that Harleysville unknowingly provided access to information by failing to implement sufficient precautions to maintain its confidentiality."; "With regard to the reasonableness of the precautions taken to prevent the disclosure, the court has no evidence before it that any precautions were taken to prevent this disclosure. . . . this employee purposefully uploaded the Claims File to the Box Site, making it accessible to anyone with access to the internet, thus making the extent of the disclosure vast."; "I find that Harleysville has waived any claim of attorney-client privilege with regard to the information posted to the Box Site. It has conceded that the Box Site was not password protected and that the information uploaded to this site was available for viewing by anyone, anywhere who was connected to the internet and happened upon the site by use of the hyperlink or otherwise. In essence, Harleysville has conceded that its actions were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. It is hard to image an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web."; "The court believes that its decision on this issue fosters the better public policy. The technology involved in information sharing is rapidly evolving. Whether a company chooses to use a new technology is a decision within that company's control. If it chooses to use a new technology, however, it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information."; "Harleysville's disclosure should not be considered 'inadvertent' under federal law. Harleysville has not claimed that its agent's posting of its Claims File to the Box Site was not an intentional act. Also, based on my reasoning above, I cannot find that Harleysville, or its counsel, took reasonable steps to prevent its disclosure or to rectify the situation. Therefore, I find that Rule 502 does not apply in this situation to prevent a waiver of the work-product doctrine. Also, under the prior precedent, the agent's actions in posting the Claims File where it could be accessed by anyone on the internet is certainly a release of protected information in a way that did not limit its future use.")

Case Date Jurisidction State Cite Checked
2017-02-09 Federal VA
Comment:

key case


Chapter: 27.3

Case Name: In re Alexandria Priftis West, Case No. 11-15594-BFK, Ch. 7, 2012 Bankr. LEXIS 1673 (E.D. Va. April 17, 2012)
(holding that a client waived her attorney-client privilege protection by disclosing a communication from her lawyer, but concluding that the waiver did not cause a subject matter waiver; "The attorney-client privilege can be waived by a disclosure of otherwise protected communications between the attorney and the client to third parties. There is 'no requirement that the waiver . . . Be intentional and knowing. Rather, [a] . . . Waiver may follow from inadvertent disclosures or from any conduct by the client that would make it unfair for him thereafter to assert the privilege.' Edna Selan Epstein, The Attorney-Client Privilege and Work Product Doctrine 264-65 (4th ed. 2001).")

Case Date Jurisidction State Cite Checked
2012-04-17 Federal VA

Chapter: 27.6

Case Name: Johnson v. Ford Motor Co., Case No.: 3:13-cv-06529, Case No.: 3:13-cv-14207, Case No.: 3:13-cv-20976, 2015 U.S. Dist. LEXIS 115425 (S.D.W. Va. Aug. 28, 2015)
(ordering a supplemental log, because the defendant used boilerplate log language; "[M]any of the withheld documents were created by non-attorneys within Ford's ASO, and then sent to attorneys within Ford's OGC. Mr. Ott testified to his belief that he and his team were assigned to perform the 2010 investigation into unintended acceleration as part of the normal course of Ford's business.")

Case Date Jurisidction State Cite Checked
2015-08-28 Federal WV

Chapter: 27.18

Case Name: Ardon v. City of Los Angeles, S223876, 2016 Cal. LEXIS 1572 (Cal. March 17, 2016)
(holding inadvertent disclosure of a protected document in response to FOIA request did not waive any protection; "Our holding that the inadvertent release of exempt documents does not waive the exemption under the Public Records Act must not be construed as an invitation for agencies to recast, at their option, any past disclosures as inadvertent so that a privilege can be reasserted subsequently. This holding applies to truly inadvertent disclosures and must not be abused to permit the type of selective disclosure section 6254.5 prohibits.")

Case Date Jurisidction State Cite Checked
2016-03-17 Federal CA

Chapter: 27.18

Case Name: Lawless v. Del. River Port Auth., Civ. A. No. 11-7306, 2013 U.S. Dist. LEXIS 6965, at *5-6 (E.D. Pa. Jan. 16, 2013)
("Lawless claims that defense counsel's objections to deposition questions were so broad that he was unable to ascertain whether any discussions at the Executive Session are not covered by attorney-client privilege. The Court rejects that argument. In Matheussen's and Brown's depositions, defense counsel initially objected to questions concerning whether there were non-legal discussions in the Executive Session. . . . However, after brief conversations between the attorneys, Matheussen and Brown were permitted to answer without objection. . . . As noted above, they both stated that the entire closed session concerning presenting the legal issues to counsel.")

Case Date Jurisidction State Cite Checked
2013-01-16 Federal PA B 7/13

Chapter: 27.18

Case Name: Charm v. Kohn, Op. No. 112833, Dkt. No. 08-2789-BLS2, 2010 Mass. Super. LEXIS 276 (Mass. Super. Ct. Sept. 30, 2010)
(holding that an inadvertent disclosure did not result in a waiver; explaining that a client's lawyer sent a bcc email copy to the client, who then used a "reply all" function -- thus including on his responsive email the adversary who had received his lawyer's original email; "The facts, in brief, are as follows. Kohn's [Client] counsel sent an e-mail to opposing counsel, with a cc to his own co-counsel, and a bcc to Kohn. Kohn responded, using the reply all function, thereby transmitting his response simultaneously to opposing counsel as well as his own. The content of Kohn's response leaves no room for doubt that he intended his communication for his own counsel only. Twenty-eight minutes later, Kohn's counsel noticed what had happened, and sent an e-mail to opposing counsel demanding deletion. . . . The record shows that Kohn had made the same error on one previous occasion, some six months earlier; a bcc from counsel to Kohn elicited a reply all, with the result that opposing counsel received a communication from Kohn that Kohn apparently had meant only for his own counsel."; "His transmission of the communication to opposing counsel was obviously unintended. His mistake was a type that is common and easy to make; indeed, there may be few e-mail users who have not on occasion used the reply all function in a manner they later regretted. Kohn's counsel noticed the error quickly, and immediately alerted his opponent and demanded deletion."; "Other aspects of the facts cut the other way. Kohn's counsel's practice of sending him a bcc of e-mails to opposing counsel, with a cc to co-counsel, gave rise to a foreseeable risk that Kohn would respond exactly as he did. In sending his response, Kohn would have to have known what he was responding to, but nevertheless failed to take careful note of the list of addressees to which he directed his reply. Kohn had done the same thing once before, although he may never had known of that error.")

Case Date Jurisidction State Cite Checked
2010-09-30 State MA

Chapter: 27.19

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 554 (Va. 2010)
(analyzing a situation in which a doctor inadvertently provided a privileged letter to his lawyer when responding to a subpoena in a worker's compensation case brought by plaintiff; also noting that in June 2006 the plaintiff answered an interrogatory in a medical malpractice claim against the defendants in which the plaintiff referred to the letter -- but that the defendants did not file a motion for protective order seeking return of the document until November 2007; analyzing the extent of disclosure; "The disclosure of the letter was complete, because it was disclosed not only to Walton, but also in the workers' compensation case to the attorney for Walton's employer, and there is no indication that the document has not been copied, digested, and analyzed. The circuit court found that the privilege was permanently destroyed, so that disclosure cannot be cured simply by a return of the document.")

Case Date Jurisidction State Cite Checked
2010-01-01 State VA

Chapter: 27.105

Case Name: Wunderlich-Malec Sys. Inc. v. Eisenmann Corp., Case No. 05 C 4343, 2007 U.S. Dist. LEXIS 78620, at *17-18 (N.D. Ill. Oct. 18, 2007)
("[T]he Court finds that Wunderlich's review procedure, which failed twice to reveal the presence of documents which had already been placed on a privilege log, was unreasonable. Furthermore, overriding concerns of fairness dictate that Wunderlich should not be allowed to 'unring the bell' and deprive Eisenmann of documents that could be important if Eisenmann is to cross-examine Wunderlich's expert. For these reasons, the Court finds that Wunderlich has waived any privilege that may have covered the disputed documents.")

Case Date Jurisidction State Cite Checked
2007-10-18 Federal IL B 8/13

Chapter: 27.401

Case Name: Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Case No. 2:07-cv-116, 2013 U.S. Dist. LEXIS 34943, at *22, *23 (S.D. Ohio Mar. 13, 2013)
(concluding that Morgan Lewis's (defendant's lawyer) production of a privileged document resulted in a waiver; finding that the ethics obligations of a receiving lawyer did not affect the inadvertent disclosure analysis; "Medex CP argues that the Magistrate Judge erred in failing to consider IPI's and its counsel's obligations under Rule 26(b)(5)(B) and Ohio Professional Conduct Rule 4.4(b)."; "Medex CP further asserts that upon receiving notice from it, IPI [plaintiff] did not comply with its obligations as the receiving party and acted in bad-faith in response to the asserted privilege. As suggested above, Medex CP's focus on IPI's obligations and alleged misconduct as the receiving party misses the mark. It was Medex CP's burden to demonstrate that it took reasonable steps to rectify the error.")

Case Date Jurisidction State Cite Checked
2013-03-13 Federal OH B 3/14

Chapter: 27.402

Case Name: EEOC v. Office Concepts, Inc., No. 1:14-cv-00290-RL-SLC, 2015 U.S. Dist. LEXIS 170587 (N.D. Ind. Dec. 22, 2015)
(applying Rule 502, and finding a waiver, based largely on the six week delay in plaintiff's effort to retrieve inadvertently produced documents; "Office Concepts did not provide its first privilege log to the EEOC until September 15, 2015, more than six weeks after having been notified of the disclosure of the potentially privileged documents, and the day after the EEOC had filed its motion for sanctions."; "Office Concepts's seven-week delay in issuing a privilege log after having been informed by the EEOC that potentially privileged documents had been produced was unreasonable. Office Concepts did not attempt to rectify the inadvertent disclosure of privileged documents until after the EEOC cited to those documents in its motion for sanctions. Office Concepts's delay in seeking to recover the documents after being made aware of their disclosure allowed the EEOC to continue using them and negated the confidential character of the documents, including the July 12, 2012, email.")

Case Date Jurisidction State Cite Checked
2015-12-22 Federal ID

Chapter: 27.403

Case Name: Walker v. Geico Indemnity Co., Case No. 6:15-cv-1002-Orl-41KRS, 2017 U.S. Dist. LEXIS 47670 (M.D. Fla. March 20, 2017)
(disqualifying plaintiff's lawyer for not complying with Florida Rule 4.4(a), and notifying the defendant of an inadvertent production of a document; "With regard to Judge Spaulding's analysis, the Young Firm first objects to her determination that it failed to comply with Rule 4-4.4(b). That Rule provides: 'A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent must promptly notify the sender.' The Young Firm contends that it did not know, nor should it have known that the information contained in the Sutton File was privileged or protected when the file was received."; "As Judge Spaulding explained, Yaffa confirmed twice in writing that he would only be producing non-privileged documents from the Sutton File and that he would be producing a privilege log. In addition, the documents, on their face, were clearly privileged, and several documents implicated Cunningham as a witness in this case. Kidd's testimony that sometimes attorneys choose to produce privileged information for strategic purposes does not change this fact. First, as noted previously, no one from the Young Firm asserted that they had ever received an entire underlying litigation file without any privilege asserted. Instead, the instances pointed to by Kidd involved the production of certain documents which were favorable to the plaintiffs' cases. Kidd also emphasized the fact that the entire file was produced without a privilege log, but that fact actually weighs against the Young Firm. It was not reasonable for Kidd to assume that, despite Yaffa's representations that a privilege log would be prepared, he knowingly produced the entire Sutton File -- 17,000-plus pages -- without asserting a single privilege, particularly given the fact that the file contained privileged information that was unfavorable to his case and that could make an attorney at his firm a witness in the case. Moreover, Kidd herself testified that she was surprised by the disclosure and thought it was unusual. Further, given the obviousness of the privileged nature of some of the documents and Young's extensive litigation experience, he would have undoubtedly recognized the inadvertent disclosure had he not been preoccupied with three back-to-back trials. After considerable deliberation, the Court will not attach ill-will or bad faith to the Young firm's actions in failing to recognize the inadvertent disclosure. The Court however agrees with Judge Spaulding that the Young Firm failed to comply with Rule 4-4.4(b)."; "The Young Firm also failed to comply with Rule 26(b)(5)(B). That Rule provides, in relevant part, that '[a]fter being notified [of an inadvertent disclosure], a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; [and] must take reasonable steps to retrieve the information if the party disclosed it before being notified.' In an effort to comply with this Rule, the Young Firm agreed to sequester the Sutton File. Despite this representation, however, Kidd used and disclosed information contained in the supposedly sequestered Sutton File in her Motion to Compel. Even more concerning is the fact that Kidd and Young disregard the significance of Kidd's actions. At the evidentiary hearing, Kidd and Young repeatedly categorized Kidd's use of privileged information as merely putting quote marks around two words. That is not the case. Kidd used information in violation of the Federal Rules of Civil Procedure, the Rules Regulating the Florida Bar, and her own promise."; "Finally, the Young Firm argues that the remedy of excluding the use of the documents in this case is sufficient to remediate any prejudice. In so arguing, the Young Firm asserts that Judge Spaulding misconstrued the importance of this information to its client's defense. There is substantial evidence on the record that Defense counsel found these protected documents to be significant to their defense -- so much that they discussed the contents of the documents with their client in the context of whether to settle the case. Further, information regarding the contents of the protected information was transmitted electronically to Defendant, and Defendant has not been able to sufficiently establish that all such information has been deleted."; "Thus, all of the requirements for disqualification are met. The contents of the protected information is highly impactful with regard to Defendant's defense, as evidenced by Young and Kidd's own testimony. This information was extensively reviewed, copied, discussed, and disseminated to Defendant, and it is not clear that all such information has been destroyed. Further, the actions of the Young Firm upon receipt and notification of the privileged information certainly weigh in favor of disqualification.")

Case Date Jurisidction State Cite Checked
2017-03-20 Federal FL

Chapter: 27.403

Case Name: Harleysville Ins. Co. v. Holding Funeral Home, Inc., Case No. 1:15cv00057, 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)
(finding that Harleysville's parent company waived both its privilege and its work product protection by sloppily loading privileged and work product-protected documents to a publicly available internet site; also relying on Virginia Bar legal ethics opinions in describing defendant's lawyer's obligation to have stopped reading the documents upon noticing that they were protected, but not disqualifying defendant's lawyer; "While not binding on this, or any, court, the Virginia State Bar Standing Committee on Legal Ethics has issued at least two Legal Ethics Opinions that address what the proper conduct should be when an attorney receives information an opposing party may claim as privileged or protected from disclosure."; "While LEO No. 1702 was issued before the adoption of the Rules of Professional Conduct, its continuing validity recently was reaffirmed by the committee. In LEO No. 1871, issued July 24, 2013, the committee addressed an attorney's responsibility when a document containing privileged information was discovered among documents produced by opposing counsel for review in discovery. The committee opined that LEO No. 1702 required the receiving attorney to promptly notify opposing counsel that the document had been produced. The committee also opined that the reviewing attorney should have 'either sequestered or destroyed his copy of the [document] pending a judicial determination of whether he could use the document.'"; "In this case, defense counsel have admitted that they accessed the Box Site by the hyperlink provided in the email from Cesario to Rowe. The face of this email contained the Confidentiality Notice, which should have provided sufficient notice to defense counsel that the sender was asserting that the information was protected from disclosure. Nonetheless, defense counsel downloaded the Claims File from the Box Site, did not reveal to Harleysville's counsel that they had obtained and reviewed the Claims File and further disseminated the Claims File to their clients and to law enforcement officials. At no time prior to the filing of the Motion, did defense counsel seek a determination from this court with regard to whether the materials they received were privileged or protected and what, if any, use they could make of the materials in this litigation. The only action defense counsel claim they took in response to discovering that they had access to Harleysville's Claims File -- calling the Virginia State Bar Ethics Hotline for advice -- belies any claim that they believed that their receipt and use of the materials without Harleysville's knowledge was proper under the circumstances."; "This court should demand better, and the ruling here is intended not to merely tolerate the bare minimum ethically compliant behavior, but, instead, to encourage the highest professional standards from those attorneys who practice before the court. The court holds that, by using the hyperlink contained in the email also containing the Confidentiality Notice to access the Box Site, defense counsel should have realized that the Box Site might contain privileged or protected information. This belief should have been further confirmed when defense counsel realized that the Box Site contained not only the Video, but Harleysville's Claims File. That being the case, defense counsel should have contacted Harleysville's counsel and revealed that it had access to this information. If defense counsel believed that the circumstances which allowed its access to the information waived any claim of privilege or protection, they should have asked the court to decide the issue before making any use of or disseminating the information. Counsel chose not to do so, however, and, therefore, the court believes that such conduct requires some sanction."; "Based on the decision that the posting of the Claims File to the internet waived any attorney-client privilege or any work-product protection over the information contained in the file, I find that the disqualification of defense counsel is not warranted in this situation. The disqualification of counsel is an extreme sanction. See Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 145 (4th Cir. 1992); Rogers v. Pittston Co., 800 F. Supp. 350, 353 (W.D. Va. 1992). Disqualification of counsel must be decided on a case-by-case basis with consideration of the harm imposed should counsel's representation continue. See Rogers, 800 F. Supp. at 353. Harleysville urges that such a sanction is necessary since all defense counsel have reviewed the Claims File. However, even if current counsel were disqualified, based on the court's ruling on waiver, substitute counsel would have access to the same information. Therefore, there can be no harm to Harleysville by allowing defense counsel to remain in this case. See Aetna Cas. & Sur. Co. v. United States, 570 F.2d 1197, 1201 (4th Cir. 1978) (disqualification inapplicable where 'practical considerations' eliminate any real harm). Therefore, I find that the more reasonable sanction is that defense counsel should bear the cost of the parties in obtaining the court's ruling on the matter.")

Case Date Jurisidction State Cite Checked
2017-02-09 Federal VA
Comment:

key case


Chapter: 27.404

Case Name: McDermott Will & Emery LLP v. The Super. Ct. of Orange County, G053623, 2017 Cal. App. LEXIS 349 (Cal. App. 4d Div. 3 April 18, 2017)
(finding that a feuding family member's forwarding of an email with a privileged attachment to another member of the family on the other side of the feud did not waive privilege protection; disqualifying Gibson Dunn from representing the other side of the family because it did not report the inadvertent disclosure and instead relied on the inadvertently disclosed privileged communication; "We do not suggest the privilege holder is excused from taking reasonable steps to preserve the privilege and recover inadvertently disclosed materials. A privilege holder may waive the privilege, and render the State Fund [State Fund and Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 [68 Cal. Rptr. 3d 758, 171 P.3d 1092]] rule inapplicable, by failing to take reasonable steps necessary to preserve the privilege. . . . As explained above, however, substantial evidence supports the trial court's implied findings that Dick did not waive the attorney-client privilege because he and his attorneys acted reasonably to preserve the attorney-client privilege during the short time period that elapsed between their discovery at Lurie's deposition that Gibson Dunn had a copy of the Blaskey e-mail, and Gibson Dunn's use of the e-mail two weeks later at Mary Jo's and Teri's depositions.")

Case Date Jurisidction State Cite Checked
2017-04-18 Federal CA
Comment:

key case


Chapter: 27.404

Case Name: McDermott Will & Emery LLP v. The Super. Ct. of Orange County, G053623, 2017 Cal. App. LEXIS 349 (Cal. App. 4d Div. 3 April 18, 2017)
(finding that a feuding family member's forwarding of an email with a privileged attachment to another member of the family on the other side of the feud did not waive privilege protection; disqualifying Gibson Dunn from representing the other side of the family because it did not report the inadvertent disclosure and instead relied on the inadvertently disclosed privileged communication; "Ninetta's disclosure of the Blaskey e-mail to Gavin, and Gavin's disclosure to Rick, Cox, Pellizzon, and Lurie, cannot support a waiver of the privilege because Ninetta and Gavin are not holders of the privilege."; "State Fund [State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 [82 Cal. Rptr. 2d 799]] is the seminal California decision defining a lawyer's ethical obligations upon receiving another party's attorney-client privileged materials. It established the following 'standard governing the conduct of California lawyers': 'When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified. We do, however, hold that whenever a lawyer ascertains that he or she may have privileged attorney-client material that was inadvertently provided by another, that lawyer must notify the party entitled to the privilege of that fact.'"; "In Rico [State Fund and Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 [68 Cal. Rptr. 3d 758, 171 P.3d 1092]], the Supreme Court quoted the first two sentences from the foregoing quote as the State Fund rule, and extended the rule to materials protected by the attorney work product doctrine.")

Case Date Jurisidction State Cite Checked
2017-04-18 Federal CA
Comment:

key case


Chapter: 27.404

Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2015 U.S. Dist. LEXIS 159601 (N.D. Cal. Nov. 25, 2015)
(declining to disqualify a plaintiff's lawyer for reading an inadvertently produced privileged document, but allowing the producing party to claw it back; "I agree that the Shimoda email's privilege was not 'readily apparent.' This conclusion is strengthened when considering the context of the production of the Shimoda email, occurring after a second-round privilege review had been conducted and where numerous (if not as numerous as plaintiffs contend) substantive documents marked as attorney-client were nonetheless produced without redactions.")

Case Date Jurisidction State Cite Checked
2015-11-25 Federal CA

Chapter: 27.404

Case Name: Burch & Cracchiolo, P.A. v. Myers, 351 P.3d 376, 381, 382, 383, 386 (Ariz. Ct. App. 2015)
(upholding disqualification of a lawyer who read and relied on an adversary's inadvertently disclosed privileged documents; finding that the adversary's request for disqualification did not waive the privilege protecting the inadvertently disclosed documents; "The question before us is whether Bradford impliedly waived his attorney-client privilege to the inadvertently disclosed client file by bringing the motion to disqualify and using the client file documents to support the motion."; "As opposed to a party's efforts to advance a substantive claim premised upon privileged documents, a motion to disqualify neither establishes a cause of action nor defeats a claim of liability; it is not a claim or affirmative defense and does not have any apparent direct impact upon the merits of the underlying litigation. Reliance upon privileged information in support of a motion to disqualify does not place that information 'at issue relevant to the case,' as the phrase is contemplated under Arizona law, and does not impliedly waive privilege as to the opposing party. Petitioners cite no authority to the contrary, and we have found none which suggests the mere filing of a motion to disqualify, premised upon the improper review and use of inadvertently disclosed information, constitutes an implied waiver of the attorney-client privilege."; "Even where disclosure was necessary to prove disqualification appropriate, however, the moving party was not deemed to have waived her privilege to the information as to the opposing party; rather, the court specifically identified means to protect the confidentiality of the information, including an in camera review."; "Turning to the immediate case, the parties do not dispute the trial court's findings that multiple documents in the client file were privileged and that Murphy's actions violated Rule 26.1(f)(2). Judge Bassett reviewed the privileged documents in camera, and determined the advantage gained by Murphy in reviewing the client file was 'obvious and significant.' He noted that no other alternative, such as suppression of the inadvertently disclosed documents, would provide an adequate remedy, and disqualified B&C [plaintiffs] from representation of Petitioners. In reviewing the record, we cannot conclude Judge Bassett abused his discretion in reaching this ruling.")

Case Date Jurisidction State Cite Checked
2015-01-01 State AZ B 4/16

Chapter: 27.404

Case Name: Stinson v. City of New York, 10 Civ. 4228 (RWS), 2014 U.S. Dist. LEXIS 145612 (S.D.N.Y. Oct. 10, 2014)
(finding that the City's inadvertent production of a document does not result in a waiver, but that plaintiffs could use the information they learned from the document; "In addition, the New York Rules of Professional Conduct ('N.Y.C.R.R.') recognize that lawyers sometimes receive documents mistakenly produced by opposing parties or their lawyers. Where a lawyer knows or reasonably should know that such a document was sent inadvertently, N.Y.C.R.R. Rule 4.4(b) requires that the lawyer promptly notify the sender in order to permit that person to take protective measures. See 22 N.Y.C.R.R. 1200.0 4.4(b)."; "[W]hile Plaintiffs must return remaining copies of the Documents, the Plaintiffs may rely on any information learned prior to notification of the inadvertent disclosure for the purposes of litigating the privilege claim.")

Case Date Jurisidction State Cite Checked
2014-10-10 Federal NY

Chapter: 27.404

Case Name: In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Case No. 8:11-bk-22258-MGW, Chapter 7, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 3927, at *25-26, *26-27 (M.D. Fla. Sept. 12, 2014)
("Under Florida law, a party receiving an inadvertent disclosure must do three things: (i) promptly return, sequester, or destroy the privileged materials; (ii) promptly notify the party whose documents were inadvertently disclosed; and (iii) take reasonable steps to retrieve the materials that were inadvertently disclosed. That coincides with an attorney's ethical obligation to notify opposing counsel if the attorney knows or reasonably should know that a privileged document was inadvertently disclosed. From the record before the Court, it appears counsel for the Probate Estates or the Trustee largely failed to comply with their obligations."; "None of this is to say that any of the lawyers involved committed any sort of ethical breach. It is not clear that the GTCR Group is directly claiming that is the case. And the Court certainly does not have enough record evidence -- nor is it inclined to conclude -- that they did. It is only to say that the Trustee cannot claim that the GTCR Group has waived the privilege by not doing enough to rectify an inadvertent disclosure when her counsel (and counsel for the Probate Estates) failed to satisfy their obligations to retrieve and destroy any inadvertently produced documents or, at a minimum, seek a ruling from the district court or this Court before using them.")

Case Date Jurisidction State Cite Checked
2014-09-12 Federal FL

Chapter: 27.404

Case Name: Pick v. City of Remsen, No. C13-4041-MWB, 2014 U.S. Dist. LEXIS 57685 (N.D. Iowa April 25, 2014)
(finding that an inadvertent production resulted in a waiver; analyzing the "overriding interest of justice" standards; "This vaguely-phrased factor can mean virtually anything. Pick focuses on the substance of the Communication, arguing that it supports his case and that it would be unfair to deprive him of the opportunity to rely on it at trial. Of course, no one would bother to fight about an irrelevant communication."; "[E]ven after receiving the Communication, Pick had no reasonable basis to rely on its availability at trial as he continued to prepare his case. Any attorney reviewing the Communication, as produced with a large number of non-privileged communications, would realize that its disclosure was likely inadvertent. Upon that realization, the Iowa Rules of Professional Conduct require prompt notification to the disclosing party. See Iowa Rule of Professional Conduct 32:4.4(b). While it is not clear when Pick's counsel first discovered that they were in possession of the Communication, Mr. Phillips's immediate response upon notification made it clear that Pick's use of the Communication at trial was by no means a 'sure thing.' Therefore, any reliance Pick may have had on using the Communication at trial would be unjustified.")

Case Date Jurisidction State Cite Checked
2014-04-25 Federal IA

Chapter: 27.404

Case Name: Crawford v. L.A. Cnty. Office of Educ., No. B239649, 2013 Cal. App. Unpub. LEXIS 3088, at *9-10 (Cal Ct. App. May 1, 2013)
(unpublished opinion) (analyzing a situation in which the defendant inadvertently produced ten pages of privileged documents to the plaintiff's lawyer, who used them at a deposition; noting that in Rico [Rico v. Mitsubishi Motors Corp., 171 P.3d 1092 (Cal. 2007)] the documents inadvertently disclosed to the other side were very important, in contrast to these documents; holding that the plaintiff's lawyer should have stopped reading the documents and alerted the defendant, but reversing the trial court's disqualification of the lawyer; "The case before us does not involve unmitigable, irreversible damage to the defendants. The documents Wise [plaintiff's lawyer] received did not implicate defendants' trial strategy nor analyze the potential testimony of any witness. Rather, they pertained to a purportedly negative relationship between plaintiff and another member of the LACOE [defendant] staff. At oral argument defendants were unable to articulate how they were prejudiced by the communications' disclosure to plaintiff. For her part, plaintiff maintains that she does not need the information contained in the communications or the information she gained using that deposition to support most of her case. The trial court has the authority to fashion a protective order which among other things could exclude from the case evidence of plaintiff's relationship with the subject of the improperly retained documents2 and has already issued an order that Wise not disclose any information obtained from the privileged documents to anyone including plaintiff and any other counsel plaintiff may retain during the course of this case. Such orders are sufficient to protect the interests of the defendants and to preserve the integrity of the judicial proceedings." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-05-01 State CA B 3/14

Chapter: 27.504

Case Name: EEOC v. Office Concepts, Inc., No. 1:14-cv-00290-RL-SLC, 2015 U.S. Dist. LEXIS 170587 (N.D. Ind. Dec. 22, 2015)
(applying Rule 502, and finding a waiver; "Here, Office Concepts produced 'in excess of 300,000 pages' of emails and attachments that were responsive to the EEOC's requests. . . . The discovery was thus undoubtedly extensive, but '[m]erely listing the volume of production will not suffice.'. . . The limited information provided to the Court on this matter shows that Office Concepts's counsel did not review the emails prior to producing them to the EEOC; instead, Attorney Bragalone asked Office Concepts itself 'to ensure that no attorney-client privilege[d] communications were included in the production' 'as it gathered the responsive emails.'")

Case Date Jurisidction State Cite Checked
2015-12-22 Federal ID

Chapter: 27.602

Case Name: Woodard v. Victory Records, Inc., No. 11 CV 7594, 2013 U.S. Dist. LEXIS 119302, at *4 5, *7 8, *10 11 (N.D. Ill. Aug. 22, 2013)
(analyzing Rule 26(b)(5)(B) and Rule 502; "Based on the facts of this case and the plain reading of Federal Rule of Civil Procedure 26(b)(5)(B), Plaintiffs are entitled to the protective order they seek. Rule 26(b)(5)(B) is essentially a 'clawback' provision. This provision permits parties to flag documents inadvertently produced during discovery that they believe are subject to privilege, and prohibits receiving parties from using them until the privilege claim is resolved." (footnote omitted); "In this case, Plaintiffs notified Defendants in writing more or less immediately after discovering the inadvertent disclosure and invoked Rule 26(b)(5)(B)'s protection. Defendants claimed to have sequestered the documents for a year, but they subsequently used the documents at the deposition of Mercado without Plaintiffs' agreement or a resolution on the claim of privilege. At no time did Defendants raise this issue with the court for resolution. Instead, Defendants maintain that it was Plaintiffs' burden to prove the existence of a privilege. This is incorrect and disregards Rule 26(b)(5)(B)'s clear directive that it is up to the receiving party to challenge the claim of privilege."; "Rule 502 is not the only rule at play in this case, and it is clear from the reading of these two rules, their advisory committee notes, and relevant case law that Rule 26(b)(5)(B) operates independently of Rule 502 and is to be followed regardless of the applicability of other evidentiary rules. Defendants provide no basis for their position that Rule 502 and its threshold privilege determination must go 'first.' In sum, the question of whether the documents at issue in this case are in fact privileged is not necessary to enforce the requirements of Rule 26(b)(5)(B )-- requirements Defendants failed to follow here.")

Case Date Jurisidction State Cite Checked
2013-08-22 Federal IL B 4/14

Chapter: 27.602

Case Name: Inhalation Plastics, Inc. v. Medex Cardio Pulmonary, Inc., Civ. A. No. 2:07 CV 116, 2012 U.S. Dist. LEXIS 121830, at *13, *15 (S.D. Ohio Aug. 28, 2012)
(finding that an inadvertent disclosure resulted in a waiver because the litigant had not followed Rule 26 in specifically describing the document; "Upon learning of the disclosures, Medex immediately invoked the privilege and asserted that the documents had been inadvertently produced. . . . When IPI sought to show fourteen of the documents to Barbara Law [defendant's employee] in a deposition, Medex again immediately asserted that the documents were inadvertently produced, privileged communications and it sought to claw back those documents."; "Medex did not identify any particular documents covered by the privilege, did not provide a proper privilege log and, beyond conclusory statements, Medex did not state a basis for the claimed privilege. . . . Consideration of Medex's inaction and failure to comply with Rule 26 leads to the conclusion that Medex failed to take adequate measures to rectify or mitigate the damage of the disclosures.")

Case Date Jurisidction State Cite Checked
2012-08-28 Federal OH B 10/13

Chapter: 27.603

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 553 n.5 (Va. 2010)
("[T]he recent amendment to the Part Four Rules of Court adding Rule 4:1(b)(6)(ii), setting up a notice procedure available when 'a party believes that a document or electronically stored information that has already been produced is privileged or its confidentiality is otherwise protected,' halting use and dissemination of the document and providing an opportunity to obtain judicial determination. We also note that the General Assembly has enacted a new Code § 8.01-420.7 in its 2010 session, which adopts, effective July 1, 2010, provisions that implement the standards articulated in this opinion to govern, inter alia, inadvertent waiver of the attorney-client privilege and work product doctrine confidentiality protections. See 2010 Acts ch. 350.")

Case Date Jurisidction State Cite Checked
2010-01-01 State VA

Chapter: 27.603

Case Name: Va. Sup. Ct. R. 4:1(b)(6)(ii)
("If a party believes that a document or electronically stored information that has already been produced is privileged or its confidentiality is otherwise protected the producing party may notify any other party of such claim and the basis for the claimed privilege or protection. Upon receiving such notice, any party holding a copy of the designated material shall sequester or destroy its copies thereof, and shall not duplicate or disseminate such material pending disposition of the claim of privilege or protection by agreement, or upon motion by any party. If a receiving party has disclosed the information before being notified of the claim of privilege or other protection, that party must take reasonable steps to retrieve the designated material. The producing party must preserve the information until the claim of privilege or other protection is resolved.")

Case Date Jurisidction State Cite Checked
Other VA N 3/10

Chapter: 27.606

Case Name: Total Recall Technologies v. Luckey, Case No. 15-cv-02281-WHA (SK), 2016 U.S. Dist. LEXIS 65673 (N.D. Cal. May 17, 2016)
(finding that plaintiff's production of privileged documents was not inadvertent, but rather was deliberate; holding that the plaintiff could not clawback the documents; "Although it appears that TRT's counsel probably now wishes it had done so more carefully, TRT's counsel actually reviewed these skype logs and made a determination to reveal the portions at issue in the March 30 version of the first skype log and the April 4 version of the second skype log after a process of meeting and conferring with opposing counsel for the first skype log and after discussing with the client the issues for both skype logs. These actions do not constitute 'inadvertent production' and thus these actions constitute waiver and place the produced material beyond the scope of the protective order. The protective order, as noted above, only allows a party to claw back materials in an 'inadvertent production.' The actions by TRT's counsel and client (TRT, acting through Igra) show a deliberate decision to disclose some information. Accordingly, the Court finds that TRT waived its attorney client privilege to the extent it disclosed privileged communications in the skype logs, and TRT cannot now claw that material back.")

Case Date Jurisidction State Cite Checked
2016-05-17 Federal CA

Chapter: 27.606

Case Name: DaCosta v. City of Danbury, 298 F.R.D. 37, 43 (D. Conn. 2014)
(quoting a claw-back order, use the "inadvertent" and "prompt" standard)

Case Date Jurisidction State Cite Checked
2014-01-01 Federal CT B 8/14

Chapter: 27.702

Case Name: Harleysville Ins. Co. v. Holding Funeral Home, Inc., Case No. 1:15cv00057, 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)
(finding that Harleysville's parent company waived both its privilege and its work product protection by sloppily loading privileged and work product-protected documents to a publicly available internet site; also relying on Virginia Bar legal ethics opinions in describing defendant's lawyer's obligation to have stopped reading the documents upon noticing that they were protected, but not disqualifying defendant's lawyer; "The Virginia Supreme Court addressed the difference between involuntary and inadvertent disclosures of privileged information in Walton [Walton v. Mid--Atl. Spine Specialists, 280 Va. 113, 694 S.E.2d 545, 549 (Va. 2010)]. . . .'..[I]n the waiver context, involuntary means that another person accomplished the disclosure through criminal activity or bad faith, without the consent of the proponent of the privilege. . . .'. . . Inadvertent disclosure, on the other hand, includes action by the proponent of the privilege to knowingly, but mistakenly, produce a document or to unknowingly provide access to a document by failing to implement sufficient precautions to maintain its confidentiality. . . . The court further reasoned that the determination of whether a disclosure was involuntary does not rest on the subjective intent of the proponent of the privilege."; "Harleysville has conceded that its agent, Cesario, an employee of its parent company, intentionally and knowingly uploaded its Claims File to the Box Site. Under these facts, I find that the disclosure was not involuntary but, rather, was inadvertent under Virginia state law, in that Harleysville unknowingly provided access to information by failing to implement sufficient precautions to maintain its confidentiality."; "With regard to the reasonableness of the precautions taken to prevent the disclosure, the court has no evidence before it that any precautions were taken to prevent this disclosure. . . . this employee purposefully uploaded the Claims File to the Box Site, making it accessible to anyone with access to the internet, thus making the extent of the disclosure vast."; "I find that Harleysville has waived any claim of attorney-client privilege with regard to the information posted to the Box Site. It has conceded that the Box Site was not password protected and that the information uploaded to this site was available for viewing by anyone, anywhere who was connected to the internet and happened upon the site by use of the hyperlink or otherwise. In essence, Harleysville has conceded that its actions were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. It is hard to image an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web."; "The court believes that its decision on this issue fosters the better public policy. The technology involved in information sharing is rapidly evolving. Whether a company chooses to use a new technology is a decision within that company's control. If it chooses to use a new technology, however, it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information."; "Harleysville's disclosure should not be considered 'inadvertent' under federal law. Harleysville has not claimed that its agent's posting of its Claims File to the Box Site was not an intentional act. Also, based on my reasoning above, I cannot find that Harleysville, or its counsel, took reasonable steps to prevent its disclosure or to rectify the situation. Therefore, I find that Rule 502 does not apply in this situation to prevent a waiver of the work-product doctrine. Also, under the prior precedent, the agent's actions in posting the Claims File where it could be accessed by anyone on the internet is certainly a release of protected information in a way that did not limit its future use.")

Case Date Jurisidction State Cite Checked
Federal VA
Comment:

key case


Chapter: 27.703

Case Name: Royal Park Investments SA/NV v. Deutsche Bank National Trust Company, 14-CV-04394 (AJN) (BCM), 2016 U.S. Dist. LEXIS 66741 (S.D.N.Y. May 20, 2016)
(after an in camera review, concluding that board minutes were not all privileged; giving plaintiff one week to establish privilege protection; "Clearly, there were inadequacies in RPI's privilege screening protocols. Given RPI's need to produce tens of thousands of documents quickly, however -- most of them in electronic form -- the Court cannot conclude that RPI was so 'reckless' as to take its production of the March and April 2013 minutes out of the realm of 'inadvertence' entirely. It is therefore necessary to consider whether those minutes were privileged in the first instance.")

Case Date Jurisidction State Cite Checked
2016-05-20 Federal NY

Chapter: 27.703

Case Name: Total Recall Technologies v. Luckey, Case No. 15-cv-02281-WHA (SK), 2016 U.S. Dist. LEXIS 65673 (N.D. Cal. May 17, 2016)
(finding that plaintiff's production of privileged documents was not inadvertent, but rather was deliberate; holding that the plaintiff could not clawback the documents; "Although it appears that TRT's counsel probably now wishes it had done so more carefully, TRT's counsel actually reviewed these skype logs and made a determination to reveal the portions at issue in the March 30 version of the first skype log and the April 4 version of the second skype log after a process of meeting and conferring with opposing counsel for the first skype log and after discussing with the client the issues for both skype logs. These actions do not constitute 'inadvertent production' and thus these actions constitute waiver and place the produced material beyond the scope of the protective order. The protective order, as noted above, only allows a party to claw back materials in an 'inadvertent production.' The actions by TRT's counsel and client (TRT, acting through Igra) show a deliberate decision to disclose some information. Accordingly, the Court finds that TRT waived its attorney client privilege to the extent it disclosed privileged communications in the skype logs, and TRT cannot now claw that material back.")

Case Date Jurisidction State Cite Checked
2016-05-17 Federal CA

Chapter: 27.703

Case Name: McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 8, 9, 11 (W.D. Va. May 31, 2013)
("[T]he court entered the parties' agreed Protective Order on February 26, 2013, which states: '[t]he inadvertent or unintentional production of discovery which a party or non-party later claims should not have been produced because of a privilege . . . will not be deemed to waive any privileges. . . . [t]he return or destruction of any Inadvertently Produced Privileged Material shall not in any way preclude the receiving party(ies) from moving the Court for an order that: (i) the discovery was never privileged or otherwise immune from disclosure; or (ii) that any applicable privilege or immunity has been waived by some act other than an alleged waiver caused by the inadvertent or unintentional production.' Protective Order ¶ E, Dkt. No. 22."; "[I]n light of the circumstances in this case, I find that their production was not 'inadvertent or unintentional,' and thus, any privilege that applied has been waived."; "Several cases have recognized the scarcity of Fourth Circuit law defining the term 'inadvertent.' See [ePlus Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 254-55 (E.D. Va.2012)]; Francisco v. Verizon, 756 F. Supp. 2d 705, 718-19 (E.D. Va. 2010). These cases rely upon the Black's Law Dictionary definition of 'inadvertent,' '[a]n accidental oversight; a result of carelessness,' (Black's Law Dictionary, 774 (8th ed. 2004)), as well as an unpublished Fourth Circuit case discussing the term, McCafferty's Inc. v. Bank of Glen Burnie, MJG-96-3656, 1998 U.S. Dist. LEXIS 12861 (4th Cir. Apr. 23, 1998). ePlus, 280 F.R.D. at 254-55; Francisco, 756 F. Supp. 2d at 719. In McCafferty's, the Court explained: '[A]n inadvertent waiver would occur when a document, which a party intended to maintain as confidential, was disclosed by accident such as a misaddressed communication to someone outside the privilege scope or the inadvertent inclusion of a privileged document with a group of nonprivileged documents being produced in discovery. In contrast, when a client makes a decision -- albeit an unwise or even mistaken, decision -- not to maintain confidentiality in a document, the privilege is lost due to an overall failure to maintain a confidence.' 1998 U.S. Dist. LEXIS 12861 at *4-5."; "In this case, the IAS document was reviewed by counsel, stamped confidential and partially redacted prior to its production. K-C refers to its failure to redact the additional statements as a 'clerical error,' that occurred 'in spite of diligent efforts to review the documents.' Although this document was one of approximately four thousand exchanged in discovery, the document itself was not inadvertently or unintentionally produced. The IAS document was carefully considered by K-C, reviewed specifically for privilege, redacted, stamped confidential and produced. Contrary to King [King Pharms., Inc. v. Purdue Pharma, L.P., No. 1:08CV00050, 2010 WL 2243872 (W.D. Va. June 2, 2010)], the privileged nature of the statements at issue here was apparent from the face of the document. There are no facts indicating that the failure to redact these statements was anything other than an error or omission by K-C. Counsel's belated realization that additional statements within a redacted document are also privileged is akin to a mistake, rather than an inadvertent production. Under these circumstances, I cannot find the failure to redact additional portions of the document to be inadvertent or unintentional, and thus the privilege that applied to those additional statements was waived by their production.")

Case Date Jurisidction State Cite Checked
2013-05-31 Federal VA B 9/13

Chapter: 27.802

Case Name: In re West, Case No. 11 15594 BFK, Ch. 7 2012 Bankr. LEXIS 1673, at *14 (Bankr. E.D. Va. Apr. 17, 2012)
("One Judge from this District has noted: 'Courts in this area take almost a strict liability approach to third party disclosure. If the information ends up in the hands of a third party, courts don't want to hear how it got there. Once in the hands of a third party, the privilege, if it ever existed, is lost.' FEC v. Christian Coalition, 178 F.R.D. 61, 71-72 (E.D. Va. 1998).")

Case Date Jurisidction State Cite Checked
2012-04-17 Federal VA

Chapter: 27.802

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 280 Va. 113, 126, 125-27, 127, 694 S.E.2d 545, 551-52, 552 (2010)
(analyzing a situation in which a doctor inadvertently provided a privileged letter to his lawyer when responding to a subpoena in a worker's compensation case brought by plaintiff; also noting that in June 2006 the plaintiff answered an interrogatory in a medical malpractice claim against the defendants in which the plaintiff referred to the letter -- but that the defendants did not file a motion for protective order seeking return of the document until November 2007; "Inadvertent disclosure of a privileged document includes a failure to exercise proper precautions to safeguard the privileged document, and does not require that the disclosure be a result of criminal activity or bad faith. For a disclosure to be considered inadvertent it is not required, as contended by the doctors at oral argument, that 'an attorney or somebody on behalf of the client ma[de] a voluntary disclosure, in other words, they g[a]ve it up knowingly, but then they claim[ed] it was inadvertent, [claiming that] "I made a mistake when I gave it up."' While knowingly, but mistakenly, producing a document may be an inadvertent disclosure, unknowingly providing access to a document by failing to implement sufficient precautions to maintain its confidentiality may also result in an inadvertent disclosure."; "In cases of inadvertent disclosure of a document protected by the attorney-client privilege, we adopt the multi-factor analysis set forth below, requiring the court to assess whether the holder of the privilege or protection took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the error."; "Under the standards we now adopt, waiver may occur if the disclosing party failed to take reasonable measures to ensure and maintain the document's confidentiality, or to take prompt and reasonable steps to rectify the error."; "Under this approach, the following factors are to be included in the court's consideration: (1) the reasonableness of the precautions to prevent inadvertent disclosures, (2) the time taken to rectify the error, (3) the scope of the discovery, (4) the extent of the disclosure, and (5) whether the party asserting the claim of privilege or protection for the communication has used its unavailability for misleading or otherwise improper or overreaching purposes in the litigation, making it unfair to allow the party to invoke confidentiality under the circumstances.")

Case Date Jurisidction State Cite Checked
2010-01-01 State VA B 3/16
Comment:

key case


Chapter: 27.802

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 266 (E.D. Va. 2006)
("In looking for guidance as to what types of inadvertent disclosure may lead to waiver, many courts have relied on the factors described in Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985).")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA B 11/06

Chapter: 27.802

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 266 (E.D. Va. 2006)
("In looking for guidance as to what types of inadvertent disclosure may lead to waiver, many courts have relied on the factors described in Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985).")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA

Chapter: 27.802

Case Name: FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479 (E.D. Va. 1991)
(holding that the Fourth Circuit would apply the Lois Sportswear approach and that an inadvertent production of a document resulted in a waiver; finding that three copies of the privileged letter were included among the 20,000 to 50,000 pages of documents produced, that two people reviewed the documents for only one day, and that the producing party did not check its documents again once one copy of the privileged letter had been accidentally produced)

Case Date Jurisidction State Cite Checked
1991-01-01 Federal VA

Chapter: 27.802

Case Name: FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 483 (E.D. Va. 1991)
(holding that the Fourth Circuit would apply the Lois Sportswear approach and that an inadvertent production of a document resulted in a waiver; finding that three copies of the privileged letter were included among the 20,000 to 50,000 pages of documents produced, that two people reviewed the documents for only one day, and that the producing party did not check its documents again once one copy of the privileged letter had been accidentally produced; the court applied the middle-ground rule of Lois Sportswear and held that the inadvertent production of a document amounted to a waiver; the court ruled that "perhaps the most important circumstance is the number of documents involved. As the number of documents grows, so too must the level of effort increase to avoid an inadvertent disclosure."; the court noted that the producing party had checked the documents only once and had accidentally produced two versions of a privileged letter)

Case Date Jurisidction State Cite Checked
1991-01-01 Federal VA

Chapter: 27.803

Case Name: Lataif v. Restaurant Equities, Inc., 7 Va. Cir. 514, 514 (Va. Cir. Ct. 1978)
(finding that a party did not waive the attorney-client privilege by failing to object to interrogatories because "the privilege is the client's and his alone. Thus, any waiver of the privilege should be the client's and his alone.")

Case Date Jurisidction State Cite Checked
1978-01-01 State VA

Chapter: 27.901

Case Name: Baranski v. United States, No. 4:11-CV-123 CAS, 2015 U.S. Dist. LEXIS 71584 (E.D. Mo. June 3, 2015)
(finding that the government's inadvertent disclosure of privileged documents in discovery resulted in a waiver; applying the common law analysis; "Although the Eighth Circuit has not had the opportunity to determine which test to apply in federal question cases, this Court has previously applied the Hydraflow approach in a federal question case and will do so in this case as well."; "Rule 502(b) adopts the middle ground on whether inadvertent disclosure constitutes a waiver of the attorney-client and work product privileges. Fed. R. Evid. 502 Advisory Committee Explanatory Note (revised 11/28/2007). Although Rule 502(b) does not explicitly codify the Hydraflow test, it is flexible enough to accommodate all of its factors. Under Rule 502(b), the disclosing party has the burden to prove that inadvertent disclosure does not operate as a waiver of the attorney-client or work product privilege.")

Case Date Jurisidction State Cite Checked
2015-06-03 Federal MO

Chapter: 27.902

Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *30-31 (S.D.N.Y. July 2, 2014)
(In cases of inadvertent disclosure (for example, mistakenly including protected documents in a voluntary and authorized production of nonprivileged materials), courts weigh four factors to determine if that disclosure constitutes a waiver. The four factors are: '(1) the reasonableness of the precautions taken by the producing party to prevent inadvertent disclosure of privileged documents; (2) the volume of discovery versus the extent of the specific disclosure at issue; (3) the length of time taken by the producing party to rectify the disclosure; and (4) the overarching issue of fairness.' . . . Factors one and three have also been codified in Rule 502(b) of the Federal Rules of Evidence. This Court concludes that these four factors should also be applied in cases of unauthorized -- as opposed to inadvertent -- disclosure. . . . The Court also notes that in cases of unauthorized disclosure, courts especially focus on the privilege-holder's actions after learning of the unauthorized disclosure.")

Case Date Jurisidction State Cite Checked
2014-07-02 Federal NY

Chapter: 27.902

Case Name: Shakima O. v. Westchester Cnty., No. 12 CV 9468 (VB), 2014 U.S. Dist. LEXIS 18644, at *19-20 (S.D.N.Y. Feb. 10, 2014)
(finding inadvertent disclosure did not result in a waiver; "Indisputably, Marvin [defendant's employee] did not intend to send Shakima the e-mail in question and made efforts to rectify the disclosure immediately after she became aware of it, by speaking with Shakima's attorney and then sending correspondence to Shakima and Shakima's attorney informing them the contents of the e-mail were privileged and requesting all copies be destroyed or returned. . . . Although it is certainly possible Marvin could have exercised more care when she sent the e-mail, it is not clear what specific steps could have been taken to prevent disclosure under the circumstances presented here. The parties do not dispute this was an isolated incident involving a single, errant e-mail.")

Case Date Jurisidction State Cite Checked
2014-02-10 Federal NY B 7/14

Chapter: 27.1002

Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *30-31 (S.D.N.Y. July 2, 2014)
(In cases of inadvertent disclosure (for example, mistakenly including protected documents in a voluntary and authorized production of nonprivileged materials), courts weigh four factors to determine if that disclosure constitutes a waiver. The four factors are: '(1) the reasonableness of the precautions taken by the producing party to prevent inadvertent disclosure of privileged documents; (2) the volume of discovery versus the extent of the specific disclosure at issue; (3) the length of time taken by the producing party to rectify the disclosure; and (4) the overarching issue of fairness.' . . . Factors one and three have also been codified in Rule 502(b) of the Federal Rules of Evidence. This Court concludes that these four factors should also be applied in cases of unauthorized -- as opposed to inadvertent -- disclosure. . . . The Court also notes that in cases of unauthorized disclosure, courts especially focus on the privilege-holder's actions after learning of the unauthorized disclosure.")

Case Date Jurisidction State Cite Checked
2014-07-02 Federal NY

Chapter: 27.1003

Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *30-31 (S.D.N.Y. July 2, 2014)
(In cases of inadvertent disclosure (for example, mistakenly including protected documents in a voluntary and authorized production of nonprivileged materials), courts weigh four factors to determine if that disclosure constitutes a waiver. The four factors are: '(1) the reasonableness of the precautions taken by the producing party to prevent inadvertent disclosure of privileged documents; (2) the volume of discovery versus the extent of the specific disclosure at issue; (3) the length of time taken by the producing party to rectify the disclosure; and (4) the overarching issue of fairness.' . . . Factors one and three have also been codified in Rule 502(b) of the Federal Rules of Evidence. This Court concludes that these four factors should also be applied in cases of unauthorized -- as opposed to inadvertent -- disclosure. . . . The Court also notes that in cases of unauthorized disclosure, courts especially focus on the privilege-holder's actions after learning of the unauthorized disclosure.")

Case Date Jurisidction State Cite Checked
2014-07-02 Federal NY

Chapter: 27.1003

Case Name: Hanson v. Wells Fargo Home Mortg., Case No. C13-0939JLR, 2013 U.S. Dist. LEXIS 149752, at *14, *15 (W.D. Wash. Oct. 17, 2013)
(finding that the inadvertent disclosure of privileged communications did not result in a waiver; "Courts of the Ninth Circuit still tend to apply the 'totality of the circumstances approach' to 'cases involving the 'inadvertent' disclosure' of attorney-client privileged or work-product protected documents without consideration for the elements of Federal Rule of Evidence 502(b).'" (citations omitted); "Some of these factors are duplicative of those in Federal Rule of Evidence 502(b). The court will apply the standard codified in Federal Rule of Evidence 502(b) and also utilize some of the factors from the 'totality of the circumstances approach' in its analysis.")

Case Date Jurisidction State Cite Checked
2013-10-17 Federal WA B 5/15

Chapter: 27.1003

Case Name: Inhalation Plastics, Inc. v. Medex Cardio Pulmonary, Inc., Civ. A. No. 2:07 CV 116, 2012 U.S. Dist. LEXIS 121830, at *9 (S.D. Ohio Aug. 28, 2012)
("In determining whether an inadvertent disclosure entitles the producing party to the return of the document, courts generally consider the following five factors: '(1) the reasonableness of precautions taken in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the magnitude of the disclosure, (4) any measures taken to mitigate the damage of the disclosures, and (5) the overriding interests of justice.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-08-28 Federal OH B 10/13

Chapter: 27.1003

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 550 n.3 (Va. 2010)
(analyzing a situation in which a doctor inadvertently provided a privileged letter to his lawyer when responding to a subpoena in a worker's compensation case brought by plaintiff; also noting that in June 2006 the plaintiff answered an interrogatory in a medical malpractice claim against the defendants in which the plaintiff referred to the letter -- but that the defendants did not file a motion for protective order seeking return of the document until November 2007; "We note that the recently promulgated Federal Rule of Evidence 502(b) adopts general standards concerning whether the party holding the privilege or protection took reasonable steps to prevent disclosure, and promptly took reasonable steps to rectify the error after inadvertent disclosure. The drafters state that they intend to make available for consideration the factors articulated in Lois Sportswear and Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 332 (N.D. Cal. 1985). Advisory Committee Note of 2008 to Fed. R. Evid. 502.")

Case Date Jurisidction State Cite Checked
2010-01-01 State VA

Chapter: 27.1003

Case Name: Cappetta v. GC Servs.Ltd. P'ship, Civ. A. No. 3:08CV288, 2008 U.S. Dist. LEXIS 103902, at *12-13 (E.D. Va. Dec. 24, 2008)
("Improper assertion of a privilege may result in a waiver of that privilege. See Eureka Financial Corp. v. Hartford Acci. & Indem. Co., 136 F.R.D. 179, 184 (E.D. Cal. 1991). To determine whether such a measure is warranted, a court may look to the reasonableness of the effort made by the producing party to prevent inadvertent disclosure; the time taken to rectify any error in asserting the privilege; the scope of discovery in the case; the extent of the disclosure; and the overriding fairness of the assertion. Id. at 184-185. Where a parry [sic] has taken no precautions to properly assert the privilege, and has allowed time to pass without clarifying the basis for its assertion of privilege, waiver of the privilege may be an appropriate sanction. Id.")

Case Date Jurisidction State Cite Checked
2008-12-24 Federal VA

Chapter: 27.1101

Case Name: Becker v. Willamette Community Bank, 6:12-cv-01427-TC, 2014 U.S. Dist. LEXIS 88616, *14 (D. Ore. June 20, 2014)
(analyzing a situation in which plaintiff was interviewed by a bank's in-house lawyer when her superior sued the bank, after which the bank fired her for helping the superior; holding that the plaintiff owned any privilege protection that covered her interview; "I cannot find that its disclosure was 'inadvertent' in any realistic sense of that term. Defense counsel obviously reviewed its contents and even apologized for 'inadvertently' failing to disclose it with the personnel records in her September 18, 2013 letter. Rather than being the type of inadvertent disclosure that merits the protective order sought by the Bank, the document was clearly intentionally transmitted by the Bank pursuant to plaintiff's request for her personnel records and now, as an afterthought, the defendant has decided to assert the privilege. The assertion comes too late. The defendant's motion for a protective order regarding this e-mail is denied.")

Case Date Jurisidction State Cite Checked
2014-06-20 Federal OR

Chapter: 27.1102

Case Name: Walker v. Geico Indemnity Co., Case No. 6:15-cv-1002-Orl-41KRS, 2017 U.S. Dist. LEXIS 47670 (M.D. Fla. March 30, 2017)
(disqualifying a law firm for relying on rather than returning inadvertently produced protected documents; "Judge Spaulding found that the disclosure was inadvertent because it was clearly a mistake and there was no evidence that Plaintiff intended to waive her privileges. Rule 502 does not define inadvertence. Some courts take a common-sense approach, 'essentially asking whether the party intended a privileged or work-product protected document to be produced or whether the production was a mistake.'. . . The Court agrees with Judge Spaulding that, in this situation, incorporating the pre-502 considerations is unnecessary because they are adequately addressed under the other 502 factors."; "The Court also agrees with Judge Spaulding that the evidence indicates that Plaintiff did not intend to waive her privileges."; "Defendant asserts that Plaintiff's disclosure of over 17,000 pages without a privilege log or an indication of asserting a privilege evidences that Plaintiff intended to waive her privilege. . . . the mere fact that the documents were disclosed without a privilege log does not indicate that Plaintiff intended to waive her privileges under the specific circumstances here."; "Accordingly, Defendant has not established that Judge's Spaulding's determination that Plaintiff's disclosure was inadvertent was clearly erroneous or contrary to law.")

Case Date Jurisidction State Cite Checked
2017-03-30 Federal FL

Chapter: 27.1102

Case Name: New Mexico Oncology and Hematology Consultants, Ltd. v. MW/GBW Presbyterian Health Care Services, Civ. No. 12-526, 2017 U.S. Dist. LEXIS 28888 (D.N.M. Feb. 27, 2017)
(in an opinion with a Special Master, declining to allow a claw-back of inadvertently produced privileged documents, because producing litigant did not explain what steps it took; "Presbyterian originally hired 'dozens of contract lawyers' to initially review the 600,000 documents it felt might be responsive to NMOHC's requests for production."; "Ironically, the 'contract lawyers' were able to select the Hinton Email for attorney client protection and redacting on three occasions during their review of 600,000 documents. It is not known when during the document review the 'dozen of contract lawyers' determined that the Hinton Email should be protected or where the email was found in the 600,000 documents, but it was found three times and after 'further inquiry' it was determined to be privileged, logged into the electronic database and placed on the Redaction Log. In contrast, Presbyterian's retained counsel in this case, Jones Day, conducted a re-review of a much smaller universe of documents (4143 as opposed to 600,000, only 1402 of which contained redactions) over a three week period of time."; "Unlike the cases cited by Presbyterian, the instant case involved three levels of careful 'document by document' review for attorney client privilege and work product protection. Presbyterian itself describes the pre-production review as monumental and the re-reviews as massive undertakings to avoid the inadvertent or mistaken production of privileged or work product protected documents. . . . The bottom line is that unlike the typical case where clawback agreements are entered into to avoid the time and expense of extensive pre-production reviews and designation for attorney client privilege or work product protection, Presbyterian was involved on three occasions in conducting careful 'document by document' reviews during which it 'carefully reviewed each document.'"; "Even if the Special Master gives Presbyterian the benefit of the use of the Protective Order as controlling, it cannot prevail. The Protective Order requires that for a document to be clawed back it must have been 'produced through inadvertence, mistake or other error.'" As stated by the Special Master in the Report and Recommendation at 23, 'Presbyterian has produced no evidence that the production of the documents in question was as a result of 'inadvertence, mistake or other error.' Likewise, in its Response to the Motion, Presbyterian has offered no evidence or support for its argument that the Hinton Email was produced as a result of 'inadvertence, mistake or other error.'"; "Presbyterian takes inconsistent positions by saying it 'carefully reviewed each document' 'document by document' and yet somehow the Hinton Email was produced without redactions as a result of the re-reviews. Presbyterian cannot credibly say it missed or overlooked the Hinton Email by 'inadvertence, mistake or other error' since the redaction were removed and the email was then placed in the electronic repository in the 'un-redacted version' before it was produced. Motion at 10. Removing the redactions and placing the un-redacted version in the electronic repository did not happen by accident or mistake, nor was its production inadvertent. These intentional acts were done by someone who 'carefully reviewed each document' 'document by document' during one of the re-reviews. Presbyterian has offered no explanation as to how or why this happened. Regardless of what test is to be applied under the Protective Order, Presbyterian was obliged at a minimum to offer some explanation or excuse as to how this happened, why it happened and who was responsible. All we know is when it happened; i.e., during the re-reviews of the redacted documents. The only conclusion the Special Master can come to is that someone looked at the Hinton Email three times and decided that the redactions could be removed, placed the un-redacted documents in the electronic repository and then produced them without the redactions."; "The irony of the situation Presbyterian finds itself in can be summarized as follows: Presbyterian insisted that it be allowed to re-review documents on its Privilege and Redaction Logs because it believed its dozens of contract lawyers over-designated for attorney client privilege. As a result of the re-reviews, attorneys for Jones Day made a determination that the redactions placed on the Hinton Email by the contract lawyers could be removed and the un-redacted email was entered into the electronic repository. Now Presbyterian wants to put the contract lawyers redactions back because they claim the redactions were removed and the document produced as a result of 'inadvertence, mistake or other error.' This is asking too much.")

Case Date Jurisidction State Cite Checked
2017-02-27 Federal NM

Chapter: 27.1102

Case Name: Royal Park Investments SA/NV v. Deutsche Bank National Trust Company, 14-CV-04394 (AJN) (BCM), 2016 U.S. Dist. LEXIS 66741 (S.D.N.Y. May 20, 2016)
(after an in camera review, concluding that board minutes were not all privileged; giving plaintiff one week to establish privilege protection; "Clearly, there were inadequacies in RPI's privilege screening protocols. Given RPI's need to produce tens of thousands of documents quickly, however -- most of them in electronic form -- the Court cannot conclude that RPI was so 'reckless' as to take its production of the March and April 2013 minutes out of the realm of 'inadvertence' entirely. It is therefore necessary to consider whether those minutes were privileged in the first instance.")

Case Date Jurisidction State Cite Checked
2016-05-20 Federal NY

Chapter: 27.1102

Case Name: Total Recall Technologies v. Luckey, Case No. 15-cv-02281-WHA (SK), 2016 U.S. Dist. LEXIS 65673 (N.D. Cal. May 17, 2016)
(finding that plaintiff's production of privileged documents was not inadvertent, but rather was deliberate; holding that the plaintiff could not clawback the documents; "Although it appears that TRT's counsel probably now wishes it had done so more carefully, TRT's counsel actually reviewed these skype logs and made a determination to reveal the portions at issue in the March 30 version of the first skype log and the April 4 version of the second skype log after a process of meeting and conferring with opposing counsel for the first skype log and after discussing with the client the issues for both skype logs. These actions do not constitute 'inadvertent production' and thus these actions constitute waiver and place the produced material beyond the scope of the protective order. The protective order, as noted above, only allows a party to claw back materials in an 'inadvertent production.' The actions by TRT's counsel and client (TRT, acting through Igra) show a deliberate decision to disclose some information. Accordingly, the Court finds that TRT waived its attorney client privilege to the extent it disclosed privileged communications in the skype logs, and TRT cannot now claw that material back.")

Case Date Jurisidction State Cite Checked
2016-05-17 Federal CA

Chapter: 27.1102

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 48623 (S.D.W.Va. April 14, 2015)
(finding draft response to possible media inquiries deserved privilege protection because an in-house lawyer had provided legal advice at various points, and that defendant Ford did not waive privilege protection for the document by inadvertently disclosing it; "The glitch that resulted in the inadvertent disclosure of the Logel document occurred after the 'eyes-on' attorney review, when the selected documents were being prepared by a vendor. Courts, considering disclosures due to processing errors that occurred after attorney review, selection, and segregation of confidential materials, have emphasized that the core element of the first factor is the reasonableness of the review procedure, not the precision of post-review processing.")

Case Date Jurisidction State Cite Checked
2015-04-14 Federal WV
Comment:

key case


Chapter: 27.1102

Case Name: Multiquip, Inc. v. Water Mgmt. Sys. LLC, Case No.: CV 08-403-S-EJL-REB, 2009 U.S. Dist. LEXIS 109148 (D. Idaho Nov. 23, 2009)
(holding that a client's inadvertent transmission of an email through an autofill mistake did not result in a waiver; "According to Defendants, the 'autofill' feature on Mr. Muhs' [Client] email program inadvertently supplied Mr. Tagliani's name instead of the intended recipient, Mr. Mark Hubert -- a third attorney representing Mr. Muhs here."; "'Defendants claim that, in typing the first two letters of Mr. Hubert's first name, 'Mark,' the email program's autofill function automatically defaulted to Mr. Tagliani's first name, "Matteo.'"; "[I]t must be recognized that an email program's autofill function operates as both a blessing and curse -- saving users time when addressing email correspondence, yet risking the potential for sending that correspondence to an unintended recipient. Here, consistent with his standard of practice with respect to corresponding with his counsel via email, Mr. Muhs utilized his email program's autofill feature to list his communication's addressees. . . . However, this time, as a result of the autofill function, instead of reaching his attorney, Mr. Hubert, Mr. Muhs' email was delivered to Mr. Tagliani."; "Mr. Muhs' care in addressing his email was hasty and imperfect. Nevertheless, 'he relied on a system that had worked in a particular way in the past to continue working the same way in the future.'. . . Under these circumstances, it cannot be said that Mr. Muhs' isolated act was unreasonable. Therefore, the Court finds that Mr. Muhs took reasonable steps to prevent the disclosure.")

Case Date Jurisidction State Cite Checked
2009-11-23 Federal ID

Chapter: 27.1103

Case Name: Absolute Activist Value Master Fund Ltd. v. Devine, Case No. 2:15-cv-328-FtM-29MRM, 2017 U.S. Dist. LEXIS 56624 (M.D. Fla. April 13, 2017)
(holding that the inadvertent production of protected documents did not result in a waiver; "'Pursuant to Federal Rule of Evidence 502(d), disclosure of Discovery Material subject to the attorney-client privilege or work-product doctrine or any other applicable privilege or immunity from disclosure without the express intent to waive such privilege, protection or immunity from disclosure shall not be deemed a waiver in whole or in part of the privilege, work-product or other applicable immunity, either as to the specific information disclosed or as to the same or related subject matter. If a Party promptly notifies the opposing Party or Parties in writing by hand delivery, overnight delivery, or e-mail (which e-mail must be considered delivered when sent) of the inadvertent disclosure of documents or other information which that Party believes in good faith to be subject to a claim of privilege, including but not limited to attorney-client privilege or attorney work product, Federal Rule of Evidence 502 and Federal Rule of Civil Procedure 26(b)(5)(B) must apply. Such notice must include a privilege log that complies with Federal Rule of Civil Procedure 26(b)(5)(A).'"; "The Court agrees with Defendant that first sentence of Paragraph 17 stands for the proposition that the mere fact of disclosure 'without the express intent to waive such privilege' shall not be deemed to be a waiver of any privilege."; "The first sentence of Paragraph 17, however, does not address what happens when privileged materials are inadvertently disclosed. Instead, the second sentence of Paragraph 17 addresses this issue."; "Plaintiffs argue that Rule 502(b) provides the applicable standard for review for inadvertent disclosures. . . . Defendant, however, argues that the first sentence of the Stipulation and Protective Order provides the applicable standard. . . . Upon review, the Court notes that the express terms of the Stipulation and Protective Order state that Fed. R. Evid. 502 must apply if the notice requirements are met.")

Case Date Jurisidction State Cite Checked
2017-04-13 Federal FL

Chapter: 27.1103

Case Name: Harleysville Ins. Co. v. Holding Funeral Home, Inc., Case No. 1:15cv00057, 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)
(finding that Harleysville's parent company waived both its privilege and its work product protection by sloppily loading privileged and work product-protected documents to a publicly available internet site; also relying on Virginia Bar legal ethics opinions in describing defendant's lawyer's obligation to have stopped reading the documents upon noticing that they were protected, but not disqualifying defendant's lawyer; "The Virginia Supreme Court addressed the difference between involuntary and inadvertent disclosures of privileged information in Walton [Walton v. Mid--Atl. Spine Specialists, 280 Va. 113, 694 S.E.2d 545, 549 (Va. 2010)]. . . .'..[I]n the waiver context, involuntary means that another person accomplished the disclosure through criminal activity or bad faith, without the consent of the proponent of the privilege. . . .'. . . Inadvertent disclosure, on the other hand, includes action by the proponent of the privilege to knowingly, but mistakenly, produce a document or to unknowingly provide access to a document by failing to implement sufficient precautions to maintain its confidentiality. . . . The court further reasoned that the determination of whether a disclosure was involuntary does not rest on the subjective intent of the proponent of the privilege."; "Harleysville has conceded that its agent, Cesario, an employee of its parent company, intentionally and knowingly uploaded its Claims File to the Box Site. Under these facts, I find that the disclosure was not involuntary but, rather, was inadvertent under Virginia state law, in that Harleysville unknowingly provided access to information by failing to implement sufficient precautions to maintain its confidentiality."; "With regard to the reasonableness of the precautions taken to prevent the disclosure, the court has no evidence before it that any precautions were taken to prevent this disclosure. . . . this employee purposefully uploaded the Claims File to the Box Site, making it accessible to anyone with access to the internet, thus making the extent of the disclosure vast."; "I find that Harleysville has waived any claim of attorney-client privilege with regard to the information posted to the Box Site. It has conceded that the Box Site was not password protected and that the information uploaded to this site was available for viewing by anyone, anywhere who was connected to the internet and happened upon the site by use of the hyperlink or otherwise. In essence, Harleysville has conceded that its actions were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. It is hard to image an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web."; "The court believes that its decision on this issue fosters the better public policy. The technology involved in information sharing is rapidly evolving. Whether a company chooses to use a new technology is a decision within that company's control. If it chooses to use a new technology, however, it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information."; "Harleysville's disclosure should not be considered 'inadvertent' under federal law. Harleysville has not claimed that its agent's posting of its Claims File to the Box Site was not an intentional act. Also, based on my reasoning above, I cannot find that Harleysville, or its counsel, took reasonable steps to prevent its disclosure or to rectify the situation. Therefore, I find that Rule 502 does not apply in this situation to prevent a waiver of the work-product doctrine. Also, under the prior precedent, the agent's actions in posting the Claims File where it could be accessed by anyone on the internet is certainly a release of protected information in a way that did not limit its future use.")

Case Date Jurisidction State Cite Checked
2017-02-09 Federal VA
Comment:

key case


Chapter: 27.1103

Case Name: Motion Industries, Inc. v. Superior Derrick Services, LLC, Civ. A. No. 15-1958 Section: "H"(5), 2016 U.S. Dist. LEXIS 23826 (E.D. La. Feb. 26, 2016)
(analyzing an internal corporate investigation into possibly improper transactions; holding that in the Fifth Circuit litigation need not be imminent to trigger the work product doctrine protection; finding plaintiff's brief provided inadequate supporting protection internal corporate investigation documents; "In the present case, there is literally nothing in the record, including the documents themselves, that would allow this Court to undertake the inquiry necessary to find these documents to be privileged. As for what the 'primary motivating purpose behind the creation of the document' might have been, the Court can only guess. This is the sum total information provided by the Plaintiff in brief to explain the documents' genesis: 'An employee contacted Movant's human resources department in July 2013 and as a result of that contact, an investigation was initiated. Movant retained Asset Protection as a contractor to assist in the process of the investigation.'"; "As a statement in support of a privilege claim, this one leaves much to be desired, as it creates far more questions than it provides answers. Who was the employee that contacted human resources and why? An 'investigation was initiated' by whom and why? What is 'Asset Protection?' Where are the privilege logs referenced in the brief? Who are the six employees identified? Are any of them attorneys? Were any attorneys involved in this investigation? Why, if at all, did anyone anticipate litigation resulting from this human resources 'contact?'"; "It should be noted that the documents themselves do not in any way help the Court answer any of these questions. The mere statement by counsel in brief that '[t]he motivation for the investigation and the preparation of the documents in relation to the investigation was an anticipation of litigation' is woefully insufficient to carry Plaintiff's burden in the absence of any supporting evidence in the record.")

Case Date Jurisidction State Cite Checked
2016-02-26 Federal LA

Chapter: 27.1103

Case Name: Waste Connections of N.C., Inc. v. K.R. Drenth Trucking, Inc., Dkt. No. 3:14-CV-642, 2015 U.S. Dist. LEXIS 102611 (W.D.N.C. Aug. 5, 2015)
(applying Rule 502 standards in applying a protective order referring to a party that "mistakenly" produces protected documents; "The Consent Protective Order equates inadvertent production with mistaken production. . . . It also requires the producing party to 'promptly' notify the receiving party when it learns it mistakenly disclosed privileged documents. . . . However, the Order is silent as to precautionary measures that parties must take in order to avoid mistakenly producing privileged documents. . . . As a result, 502(b) controls with regards to determining whether Plaintiff took adequate precautions to prevent mistaken disclosure.")

Case Date Jurisidction State Cite Checked
2015-08-05 Federal NC

Chapter: 27.1103

Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-Civ-Cohn/Seltzer, 2015 U.S. Dist. LEXIS 45924 (S.D. Fla. April 8, 2015)
(finding that defendant was not inappropriately tardy in filing a privilege log thirty-eight days after producing responsive documents; also finding that defendant's inadvertent production did not result in a waiver; "The first element of Rule 502(b) requires that the disclosure of privileged documents be 'inadvertent'; the rule, however, does not define that term. Courts considering whether a disclosure of privileged documents is inadvertent have taken two different approaches. Some courts considering the question have ruled that a party's subjective intent is not sufficient to establish that a disclosure is inadvertent; rather, these courts look at several factors to determine whether the 'inadvertent' element has been satisfied, including the total number of documents reviewed, the procedures used to review the documents before production, and the actions of the producing party after discovering that the documents had been produced."; "Other courts have taken a simpler approach, 'essentially asking whether the party intended a privileged or work-product protected document to be produced or whether the production was a mistake.'"; "This Court concurs with the rationale of Amobi [Amobi v. District of Columbia Dep't of Corrections, 262 F.R.D. 45, 53 (D.D.C. 2009)] and, therefore, accepts GAF's representation that the production of the two emails at issue was inadvertent, that is, a mistake and unintentional.")

Case Date Jurisidction State Cite Checked
2015-04-08 Federal FL

Chapter: 27.1103

Case Name: Barnett v. Aultman Hosp., Case No. 5:11 CV 399, 2012 U.S. Dist. LEXIS 53733, at *8 (N.D. Ohio Apr. 16, 2012)
("It is unclear to the Court after considering the testimony of defendant's attorneys Hearey and Billington, whether the unredacted content of the documents at issue were not recognized by defendant as privileged before the documents were disclosed, or whether the documents were recognized as privileged and disclosed by mistake. However, either way under Rule 502(b), the disclosure was inadverent [sic].")

Case Date Jurisidction State Cite Checked
2012-08-16 Federal OH B 8/13

Chapter: 27.1201

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 554 (Va. 2010)
(analyzing a situation in which a doctor inadvertently provided a privileged letter to his lawyer when responding to a subpoena in a worker's compensation case brought by plaintiff; also noting that in June 2006 the plaintiff answered an interrogatory in a medical malpractice claim against the defendants in which the plaintiff referred to the letter -- but that the defendants did not file a motion for protective order seeking return of the document until November 2007; analyzing the interest of justice; "While the attorney client privilege serves a very important function in the administration of justice, it is subject to waiver, and the holder of the privilege is responsible for exercising reasonable caution to ensure that the privilege remains intact. For the proponent of the privilege to enjoy the benefits of the privilege, he or she must also bear the burden of taking sufficient measures to safeguard privileged documents. Such measures were lacking in this case. Therefore, the circuit court erred in ruling that the privilege was not waived.")

Case Date Jurisidction State Cite Checked
2101-01-01 State VA

Chapter: 27.1201

Case Name: Waste Connections of N.C., Inc. v. K.R. Drenth Trucking, Inc., Dkt. No. 3:14-CV-642, 2015 U.S. Dist. LEXIS 102611 (W.D.N.C. Aug. 5, 2015)
(applying Rule 502 standards in applying a protective order referring to a party that "mistakenly" produces protected documents; "The Consent Protective Order equates inadvertent production with mistaken production. . . . It also requires the producing party to 'promptly' notify the receiving party when it learns it mistakenly disclosed privileged documents. . . . However, the Order is silent as to precautionary measures that parties must take in order to avoid mistakenly producing privileged documents. . . . As a result, 502(b) controls with regards to determining whether Plaintiff took adequate precautions to prevent mistaken disclosure.")

Case Date Jurisidction State Cite Checked
2015-08-05 Federal NC

Chapter: 27.1201

Case Name: LabMD, Inc. v. Tiversa Holding Corp., Civ. A. No. 15-92, 2015 U.S. Dist. LEXIS 32650 (W.D. Pa. March 17, 2015)
(finding that an inadvertent production resulted in a waiver; "With regard to precautions taken to prevent inadvertent disclosure, LabMD again presents no evidence as to procedures typically employed by counsel to ensure that drafts are segregated and protected, and that documents filed with the Court are reviewed by the responsible attorney prior to submission."; "Here, LabMD presents no evidence to weigh precautionary measures taken, or to determine whether the filing occurred due to an inappropriate delegation to administrative staff or some mishap otherwise within the control of counsel. Therefore, consideration of this factor weighs in favor of finding waiver.")

Case Date Jurisidction State Cite Checked
2015-03-17 Federal PA

Chapter: 27.1201

Case Name: East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., Civil No. 12-cv-517-LM, 2014 U.S. Dist. LEXIS 129272, at *6-7 (D.N.H. Sept. 16, 2014)
("Borrowing the reasonableness language that appears in Rule 502(b), many courts have read a reasonableness requirement into Rule 502(d). . . . However, this court declines to do so. . . . Inserting a reasonableness requirement into Rule 502(d) would thwart this purpose. . . . Accordingly, the protective order entered in this case controls the question presented here. That order provides that no waiver occurs as a result of inadvertently-produced privileged documents, without regard to the measures a party takes to prevent disclosure. It is undisputed that EastCoast's production of the privileged document was unintentional. Therefore, as the protective order provides, EastCoast did not waive its privilege.")

Case Date Jurisidction State Cite Checked
2014-09-16 Federal NH

Chapter: 27.1201

Case Name: Foti v. City of Jamestown Board of Public Utilities, 10CV575A, 2014 U.S. Dist. LEXIS 108376 (W.D.N.Y. Aug. 5, 2014)
(analyzing an inadvertent disclosure issue, ultimately finding a waiver but inexplicably not relying on Rule 502; "It appears that E&M produced 2318 pages of documents. . . . It is likely that many of these documents concerned E&M's compliance work on the 2006 Consent Order and pre-dated the commencement of this litigation. The defendants have not demonstrated that the volume of documents would have made it difficult to locate or identify the few privileged documents E&M produced. Indeed, where, as here, defendants were allegedly using E&M for dual purposes, it was incumbent upon the defendants to make some effort to ensure that E&M kept any allegedly privileged documents separate from the documents E&M would produce in the ordinary course of its work relating to the 2006 Consent Order.")

Case Date Jurisidction State Cite Checked
2014-08-05 Federal NY

Chapter: 27.1201

Case Name: Galena St. Fund, L.P. v. Wells Fargo Bank, N.A., Civ. A. No. 12-cv-00587-BNB-KMT, 2014 U.S. Dist. LEXIS 31257, at *27 (D. Colo. Mar. 10, 2014)
(analyzing a claim by plaintiff, an investor in mortgage backed trusts; "In this case, by contrast, the evidence indicates that the production of the 150 disputed documents was unintended and that they were 'part of a larger production which went unnoticed by the producer. . . .' . . . Specifically, counsel for Wells Fargo established an elaborate protocol for the review and production of documents responsive to Galena's requests.")

Case Date Jurisidction State Cite Checked
2014-03-10 Federal CO B 8/14

Chapter: 27.1202

Case Name: Walker v. Geico Indemnity Co., Case No. 6:15-cv-1002-Orl-41KRS, 2017 U.S. Dist. LEXIS 47670 (M.D. Fla. March 30, 2017)
(disqualifying a law firm for relying on rather than returning inadvertently produced protected documents; "Here, the attorneys had no knowledge of the production, and they were not given the opportunity to review the documents before they were produced even though the firm's longstanding operating procedures required the legal assistant to bring the documents to an attorney prior to producing them. Contrary to Defendant's assertion, Plaintiff is not attempting to create a 'legal assistant exception' to excuse lawyer misconduct. Unlike in U.S. Fidelity [U.S. Fidelity & Guaranty Co. v. Liberty Surplus Insurance Corp., 630 F. Supp. 2d 1332 (M.D. Fla. 2007)], there was no lawyer misconduct here.")

Case Date Jurisidction State Cite Checked
2017-03-30 Federal FL

Chapter: 27.1202

Case Name: Walker v. Geico Indemnity Co., Case No. 6:15-cv-1002-Orl-41KRS, 2017 U.S. Dist. LEXIS 47670 (M.D. Fla. March 20, 2017)
(disqualifying plaintiff's lawyer for not complying with Florida Rule 4.4(a), and notifying the defendant of an inadvertent production of a document; "It is undisputed that Plaintiff's law firm implemented the following procedure to avoid disclosure of privileged materials: once a bates stamped copy of the underlying litigation file is obtained, an assigned attorney will review the file and prepare a privilege log; then, prior to transmitting the file to opposing counsel, an attorney must conduct a final review and sign the transmittal letter, confirming that what is being disclosed is appropriate. . . . Judge Spaulding determined that this procedure constituted reasonable steps to prevent disclosure."; "Given that Sabbatino [legal assistant working at one of plaintiff's law firms] thought she was simply completing a task she was assigned combined with the fact that Sabbatino's supervising attorneys were not ready to discuss the matter with Sabbatino yet because they were still reviewing the 17,000-plus pages in the file to determine what items were privileged, it is entirely reasonable that Sabbatino and the attorneys would not have discussed the matter. Further, as noted, Sabbatino felt rushed by Defendant's office, not by her supervising attorneys, so, again, it is believable that she did not feel that it was necessary to update her supervising attorney that she had completed a task she believed was delegated to her, particularly when that attorney was not inquiring as to its status. Plaintiff's firm no doubt handles more than one matter at a time, and it is entirely reasonable that Sabbatino and her supervising attorneys continued to move forward handling their cases without discerning a need to share the minutiae of each completed task."; "Here, the attorneys had no knowledge of the production, and they were not given the opportunity to review the documents before they were produced even though the firm's longstanding operating procedures required the legal assistant to bring the documents to an attorney prior to producing them. Contrary to Defendant's assertion, Plaintiff is not attempting to create a 'legal assistant exception' to excuse lawyer misconduct."; "Judge Spaulding correctly determined that Plaintiff's counsel acted promptly and reasonably, noting that counsel did exactly what was required by Rule 26(b)(5)(B). Defendant argues that this determination was 'unfounded' because Plaintiff's counsel waited two months after the disclosure to notify Defense counsel. Defense counsel again focuses on certain facts to the exclusion of others. While it is true that the disclosure occurred on January 20, 2016, the undisputed evidence establishes that Plaintiff's counsel was not aware of the disclosure until March 15, 2016, and took steps that day to rectify the problem. To the extent Defendant argues that Plaintiff's counsel was or should have been aware of the disclosure prior to March 15, 2016, such contention relies on counsel's previous ill-advised accusations of untruthfulness and is without merit.")

Case Date Jurisidction State Cite Checked
2017-03-20 Federal FL
Comment:

key case


Chapter: 27.1202

Case Name: EEOC v. Office Concepts, Inc., No. 1:14-cv-00290-RL-SLC, 2015 U.S. Dist. LEXIS 170587 (N.D. Ind. Dec. 22, 2015)
(applying Rule 502, and finding a waiver, based largely on the six week delay in plaintiff's effort to retrieve inadvertently produced documents; "The Court will now turn to the reasonableness of the decision to have Office Concepts itself review the documents for privilege without assistance of counsel. Courts in this Circuit have 'declin[ed] to hold that the use of paralegals or non-lawyers for document review is unreasonable in every case.'. . . However, these courts have noted that document review by non-lawyers is only reasonable where they 'have the legal training necessary to implement and oversee reasonable review procedures,'. . . Office Concepts has not provided any information regarding the training and experience of the individuals conducting the document review, nor has it provided any information about the actual process used by these individuals to determine whether documents were privileged. Office Concepts has therefore failed to meet its burden to provide 'specific facts and details to show the procedures were reasonable.'")

Case Date Jurisidction State Cite Checked
2015-12-22 Federal IN

Chapter: 27.1202

Case Name: Pick v. City of Remsen, No. C13-4041-MWB, 2014 U.S. Dist. LEXIS 57685 (N.D. Iowa April 25, 2014)
(finding that an advertent production resulted in a waiver; "In any case involving an inadvertent disclosure, it is easy to assume that the precautions taken to prevent that disclosure must have been unreasonable. In other words, the fact that the mistake happened seems to show that the disclosing party was careless. See, e.g., Draus v. Healthtrust, Inc., 172 F.R.D. 384, 388 (S.D. Ind. 1997) ('It is difficult for a party to show that it took reasonable precautions to prevent production of privileged documents where those precautions obviously failed.'). Of course, hindsight is 20/20. It is a gross oversimplification to state that because an error occurred, the actor must have been negligent. A closer examination of how the inadvertent disclosure occurred is necessary."; noting that the production amounted to only 398 pages; "Under these circumstances, I find that Mr. Phillips took reasonable precautions in reviewing and producing the documents. While he obviously missed one, this mistake does not make his process per se unreasonable. Nor does the fact that Mr. Phillips was the only person to conduct a privilege review before producing the documents render that review unreasonable. Mr. Phillips is a licensed, experienced attorney who states that he personally reviewed each page before producing the documents at issue. Had he delegated this task to a non-lawyer, with no review by an attorney, I would have no trouble finding that the process was unreasonable. However, litigation is already expensive enough. When an experienced attorney personally reviews every document before production, I am not going to find that he or she acted unreasonably simply because another person was not asked to repeat the same task.")

Case Date Jurisidction State Cite Checked
2014-04-25 Federal IA

Chapter: 27.1202

Case Name: Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Case No. 2:07-cv-116, 2013 U.S. Dist. LEXIS 34943, at *20-21 (S.D. Ohio Mar. 13, 2013)
(concluding that Morgan Lewis's (defendant's lawyer) production of a privileged document resulted in a waiver; finding that the ethics obligations of a receiving lawyer did not affect the inadvertent disclosure analysis; "Medex CP asserts that its attorneys at Morgan Lewis 'tagged' 327 documents with a 'privilege' notation, that these documents were inadvertently produced due to an administrative oversight, and that, after learning that IPI received documents involving Smiths Medical [defendant] attorneys and a paralegal, Morgan Lewis reviewed the document production to confirm that the May 30, 2011 documents had correct privilege designations in Morgan Lewis' database. . . . If Medex CP's counsel was able to confirm pre-production attorney review of the documents produced on May 30, 2011, it should have been able to provide a notice to IPI's counsel that identified, with sufficient particularity and comprehensiveness, which documents were privileged. Instead, Medex CP made a generalized claim of privilege, which is not consistent with the specificity requirement of Rule 26(b)(5)(B). Medex CP's Objection does not explain this discrepancy.")

Case Date Jurisidction State Cite Checked
2013-03-13 Federal OH B 3/14

Chapter: 27.1202

Case Name: Clark Cnty. v. Jacobs Facilities, Inc., Case No. 2:10 cv 00194 LRH PAL, 2012 U.S. Dist. LEXIS 141651, at *29, *36 (D. Nev. Oct. 1, 2012)
(analyzing the inadvertent disclosure of privileged documents in a litigation in which the litigants had agreed to a claw back order (which used the term "inadvertent" and required the producing party to "immediately" alert the receiving party of any inadvertent disclosure of privileged communications); "Three different levels of privilege review were conducted, initially by a paralegal, then by an associate attorney, and finally by an officer of the law firm."; ultimately holding that the inadvertent disclosure of privileged documents did not result in a waiver)

Case Date Jurisidction State Cite Checked
2012-10-01 Federal NV B 12/13

Chapter: 27.1202

Case Name: D'Onofrio v. Borough of Seaside Park, Civ. A. No. 09-6220 (AET), 2012 U.S. Dist. LEXIS 75651 (D.N.J. May 30, 2012)
(holding that a parties' inadvertent production waived the privilege, because the parties did not "take reasonable steps to remedy their error"; "Also reasonable was counsel's decision to delegate to a non-attorney, clerical employee the task of separating the flagged, privileged Ryan/McKenna documents from the rest of the production. Indeed, the Court finds no reason why, after counsel invested substantial resources in reviewing the Borough and Ryan/McKenna documents for privilege, the task of physically separating the documents flagged as privileged from the non-privileged documents and sending the non-privileged information to a vendor to be scanned on a disc for production would also have to be performed by an attorney or paralegal. Instead, this is exactly the type of task that could reasonably be assigned to clerical staff."; "Moreover, the Court finds that the Borough Defends were not obligated to review the disc before producing same to Plaintiff. Indeed, as explicitly noted in FRE 502(b)'s Explanatory Note, '[t]he rule does not require the producing party to engage in a post-production review to determine whether any protected communication or information has been produced by mistake.' Thus, having implemented reasonable steps to prevent the inadvertent disclosure of privileged information, the Borough Defendants were permitted to rely on same, at least until there were 'any obvious indications that a protected communication or information ha[d] been produced inadvertently.' Explanatory Note, FRE 502(b).")

Case Date Jurisidction State Cite Checked
2012-05-30 Federal NJ

Chapter: 27.1203

Case Name: Absolute Activist Value Master Fund Ltd. v. Devine, Case No. 2:15-cv-328-FtM-29MRM, 2017 U.S. Dist. LEXIS 56624 (M.D. Fla. April 13, 2017)
(holding that the inadvertent production of protected documents did not result in a waiver; "Upon consideration, while Defendant likely could have done more to prevent the inadvertent disclosure here, the Court is unwilling to find Defendant's precautions were unreasonable. Here, it is clear that Defendant's counsel undertook the effort to specifically review hard copy documents collected from Defendant for privilege. . . . Defendant's counsel then later re-reviewed those documents with other ESI. . . . It was only on re-review that the inadvertent disclosure came to light. . . . Additionally, in the Court's review of the documents, the Court notes that none of the documents state the words 'privileged,' 'private,' or 'confidential' on their face. . . . Thus, it is not readily apparent from the face of the documents that they are privileged or confidential -- only a more thorough examination with the documents explained in their proper context demonstrates the privileged nature of the documents. . . . While Plaintiffs make a compelling argument that the circumstances in this case should have alerted Defendant's counsel that 'extra care must be taken'. . . the Court nevertheless finds that the steps Defendant took were reasonable in the first instance, even if they were not successful.")

Case Date Jurisidction State Cite Checked
2017-04-13 Federal FL

Chapter: 27.1203

Case Name: Walker v. Geico Indemnity Co., Case No. 6:15-cv-1002-Orl-41KRS, 2017 U.S. Dist. LEXIS 47670 (M.D. Fla. March 30, 2017)
(disqualifying a law firm for relying on rather than returning inadvertently produced protected documents; "Here, the attorneys had no knowledge of the production, and they were not given the opportunity to review the documents before they were produced even though the firm's longstanding operating procedures required the legal assistant to bring the documents to an attorney prior to producing them. Contrary to Defendant's assertion, Plaintiff is not attempting to create a 'legal assistant exception' to excuse lawyer misconduct. Unlike in U.S. Fidelity [U.S. Fidelity & Guaranty Co. v. Liberty Surplus Insurance Corp., 630 F. Supp. 2d 1332 (M.D. Fla. 2007)], there was no lawyer misconduct here.")

Case Date Jurisidction State Cite Checked
2017-03-30 Federal FL

Chapter: 27.1203

Case Name: Walker v. Geico Indemnity Co., Case No. 6:15-cv-1002-Orl-41KRS, 2017 U.S. Dist. LEXIS 47670 (M.D. Fla. March 20, 2017)
(disqualifying plaintiff's lawyer for not complying with Florida Rule 4.4(a), and notifying the defendant of an inadvertent production of a document; "It is undisputed that Plaintiff's law firm implemented the following procedure to avoid disclosure of privileged materials: once a bates stamped copy of the underlying litigation file is obtained, an assigned attorney will review the file and prepare a privilege log; then, prior to transmitting the file to opposing counsel, an attorney must conduct a final review and sign the transmittal letter, confirming that what is being disclosed is appropriate. . . . Judge Spaulding determined that this procedure constituted reasonable steps to prevent disclosure."; "Given that Sabbatino [legal assistant working at one of plaintiff's law firms] thought she was simply completing a task she was assigned combined with the fact that Sabbatino's supervising attorneys were not ready to discuss the matter with Sabbatino yet because they were still reviewing the 17,000-plus pages in the file to determine what items were privileged, it is entirely reasonable that Sabbatino and the attorneys would not have discussed the matter. Further, as noted, Sabbatino felt rushed by Defendant's office, not by her supervising attorneys, so, again, it is believable that she did not feel that it was necessary to update her supervising attorney that she had completed a task she believed was delegated to her, particularly when that attorney was not inquiring as to its status. Plaintiff's firm no doubt handles more than one matter at a time, and it is entirely reasonable that Sabbatino and her supervising attorneys continued to move forward handling their cases without discerning a need to share the minutiae of each completed task."; "Here, the attorneys had no knowledge of the production, and they were not given the opportunity to review the documents before they were produced even though the firm's longstanding operating procedures required the legal assistant to bring the documents to an attorney prior to producing them. Contrary to Defendant's assertion, Plaintiff is not attempting to create a 'legal assistant exception' to excuse lawyer misconduct."; "Judge Spaulding correctly determined that Plaintiff's counsel acted promptly and reasonably, noting that counsel did exactly what was required by Rule 26(b)(5)(B). Defendant argues that this determination was 'unfounded' because Plaintiff's counsel waited two months after the disclosure to notify Defense counsel. Defense counsel again focuses on certain facts to the exclusion of others. While it is true that the disclosure occurred on January 20, 2016, the undisputed evidence establishes that Plaintiff's counsel was not aware of the disclosure until March 15, 2016, and took steps that day to rectify the problem. To the extent Defendant argues that Plaintiff's counsel was or should have been aware of the disclosure prior to March 15, 2016, such contention relies on counsel's previous ill-advised accusations of untruthfulness and is without merit.")

Case Date Jurisidction State Cite Checked
2017-03-20 Federal FL
Comment:

key case


Chapter: 27.1203

Case Name: New Mexico Oncology and Hematology Consultants, Ltd. v. MW/GBW Presbyterian Health Care Services, Civ. No. 12-526, 2017 U.S. Dist. LEXIS 28888 (D.N.M. Feb. 27, 2017)
(in an opinion with a Special Master, declining to allow a claw-back of inadvertently produced privileged documents, because producing litigant did not explain what steps it took; "Presbyterian originally hired 'dozens of contract lawyers' to initially review the 600,000 documents it felt might be responsive to NMOHC's requests for production."; "Ironically, the 'contract lawyers' were able to select the Hinton Email for attorney client protection and redacting on three occasions during their review of 600,000 documents. It is not known when during the document review the 'dozen of contract lawyers' determined that the Hinton Email should be protected or where the email was found in the 600,000 documents, but it was found three times and after 'further inquiry' it was determined to be privileged, logged into the electronic database and placed on the Redaction Log. In contrast, Presbyterian's retained counsel in this case, Jones Day, conducted a re-review of a much smaller universe of documents (4143 as opposed to 600,000, only 1402 of which contained redactions) over a three week period of time."; "Unlike the cases cited by Presbyterian, the instant case involved three levels of careful 'document by document' review for attorney client privilege and work product protection. Presbyterian itself describes the pre-production review as monumental and the re-reviews as massive undertakings to avoid the inadvertent or mistaken production of privileged or work product protected documents. . . . The bottom line is that unlike the typical case where clawback agreements are entered into to avoid the time and expense of extensive pre-production reviews and designation for attorney client privilege or work product protection, Presbyterian was involved on three occasions in conducting careful 'document by document' reviews during which it 'carefully reviewed each document.'"; "Even if the Special Master gives Presbyterian the benefit of the use of the Protective Order as controlling, it cannot prevail. The Protective Order requires that for a document to be clawed back it must have been 'produced through inadvertence, mistake or other error.'" As stated by the Special Master in the Report and Recommendation at 23, 'Presbyterian has produced no evidence that the production of the documents in question was as a result of 'inadvertence, mistake or other error.' Likewise, in its Response to the Motion, Presbyterian has offered no evidence or support for its argument that the Hinton Email was produced as a result of 'inadvertence, mistake or other error.'"; "Presbyterian takes inconsistent positions by saying it 'carefully reviewed each document' 'document by document' and yet somehow the Hinton Email was produced without redactions as a result of the re-reviews. Presbyterian cannot credibly say it missed or overlooked the Hinton Email by 'inadvertence, mistake or other error' since the redaction were removed and the email was then placed in the electronic repository in the 'un-redacted version' before it was produced. Motion at 10. Removing the redactions and placing the un-redacted version in the electronic repository did not happen by accident or mistake, nor was its production inadvertent. These intentional acts were done by someone who 'carefully reviewed each document' 'document by document' during one of the re-reviews. Presbyterian has offered no explanation as to how or why this happened. Regardless of what test is to be applied under the Protective Order, Presbyterian was obliged at a minimum to offer some explanation or excuse as to how this happened, why it happened and who was responsible. All we know is when it happened; i.e., during the re-reviews of the redacted documents. The only conclusion the Special Master can come to is that someone looked at the Hinton Email three times and decided that the redactions could be removed, placed the un-redacted documents in the electronic repository and then produced them without the redactions."; "The irony of the situation Presbyterian finds itself in can be summarized as follows: Presbyterian insisted that it be allowed to re-review documents on its Privilege and Redaction Logs because it believed its dozens of contract lawyers over-designated for attorney client privilege. As a result of the re-reviews, attorneys for Jones Day made a determination that the redactions placed on the Hinton Email by the contract lawyers could be removed and the un-redacted email was entered into the electronic repository. Now Presbyterian wants to put the contract lawyers redactions back because they claim the redactions were removed and the document produced as a result of 'inadvertence, mistake or other error.' This is asking too much.")

Case Date Jurisidction State Cite Checked
2017-02-27 Federal NM

Chapter: 27.1203

Case Name: Royal Park Investments SA/NV v. Deutsche Bank National Trust Company, 14-CV-04394 (AJN) (BCM), 2016 U.S. Dist. LEXIS 66741 (S.D.N.Y. May 20, 2016)
(after an in camera review, concluding that board minutes were not all privileged; giving plaintiff one week to establish privilege protection; "Clearly, there were inadequacies in RPI's privilege screening protocols. Given RPI's need to produce tens of thousands of documents quickly, however -- most of them in electronic form -- the Court cannot conclude that RPI was so 'reckless' as to take its production of the March and April 2013 minutes out of the realm of 'inadvertence' entirely. It is therefore necessary to consider whether those minutes were privileged in the first instance.")

Case Date Jurisidction State Cite Checked
2016-05-20 Federal NY

Chapter: 27.1203

Case Name: EEOC v. Office Concepts, Inc., No. 1:14-cv-00290-RL-SLC, 2015 U.S. Dist. LEXIS 170587 (N.D. Ind. Dec. 22, 2015)
(applying Rule 502, and finding a waiver; "Here, Office Concepts produced 'in excess of 300,000 pages' of emails and attachments that were responsive to the EEOC's requests. . . . The discovery was thus undoubtedly extensive, but '[m]erely listing the volume of production will not suffice.'. . . The limited information provided to the Court on this matter shows that Office Concepts's counsel did not review the emails prior to producing them to the EEOC; instead, Attorney Bragalone asked Office Concepts itself 'to ensure that no attorney-client privilege[d] communications were included in the production' 'as it gathered the responsive emails.'")

Case Date Jurisidction State Cite Checked
2015-12-22 Federal ID

Chapter: 27.1203

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 48623 (S.D.W.Va. April 14, 2015)
(finding draft response to possible media inquiries deserved privilege protection because an in-house lawyer had provided legal advice at various points, and that defendant Ford did not waive privilege protection for the document by inadvertently disclosing it; "[T]here was a two-tiered review. First, employees of Ford collected all potentially germane documents and forwarded them to Xerox. Second, the documents were reviewed by an attorney, who confirmed the relevancy of the documents and identified, redacted, and designated privileged and protected materials. This type of review is common and generally accepted as reasonable.")

Case Date Jurisidction State Cite Checked
2015-04-14 Federal WV

Chapter: 27.1203

Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-Civ-Cohn/Seltzer, 2015 U.S. Dist. LEXIS 45924 (S.D. Fla. April 8, 2015)
(finding that defendant was not inappropriately tardy in filing a privilege log thirty-eight days after producing responsive documents; also finding that defendant's inadvertent production did not result in a waiver; "GAF's counsel represents that he personally inspected the documents that the Court had ordered to be produced. In so doing, he flagged privileged documents, including GAF 845, and instructed his staff to set aside those flagged documents. Although flagged as privileged, his staff inadvertently produced GAF 815.")

Case Date Jurisidction State Cite Checked
2015-04-08 Federal FL

Chapter: 27.1203

Case Name: United States v. Memorial Health, Inc., 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
(finding defendants' affidavits insufficient to justify privilege protection or allow defendants to retrieve one document claimed to be inadvertently produced out of 30,000 produced; analyzing the privilege protection issue for the inadvertently produced document; using the Rule 502 factors and refusing to order plaintiff to return the document; "Here, the Draft Document for which Defendants claim privilege was attached to a communication that Defendants allege was between Defendants' executives and Prior Counsel for the purpose of obtaining legal advice. 'These communications warrant[] a significant level of scrutiny' in conducting a privilege review. . . . Even though it is likely that only a very small percentage of the 30,000 documents produced are potentially privileged, the sensitive nature of the Draft Document tempers the weight of the relatively small scale of the inadvertent disclosure. Accordingly, the Court finds that while the extent of the inadvertent disclosure relative to the scope of discovery weighs in favor of finding no waiver, it does not weigh as heavily as factors one and two do in favor of waiver.")

Case Date Jurisidction State Cite Checked
2014-11-05 Federal GA

Chapter: 27.1203

Case Name: Pick v. City of Remsen, No. C13-4041-MWB, 2014 U.S. Dist. LEXIS 57685 (N.D. Iowa April 25, 2014)
(finding that an advertent production resulted in a waiver; "In any case involving an inadvertent disclosure, it is easy to assume that the precautions taken to prevent that disclosure must have been unreasonable. In other words, the fact that the mistake happened seems to show that the disclosing party was careless. See, e.g., Draus v. Healthtrust, Inc., 172 F.R.D. 384, 388 (S.D. Ind. 1997) ('It is difficult for a party to show that it took reasonable precautions to prevent production of privileged documents where those precautions obviously failed.'). Of course, hindsight is 20/20. It is a gross oversimplification to state that because an error occurred, the actor must have been negligent. A closer examination of how the inadvertent disclosure occurred is necessary."; noting that the production amounted to only 398 pages; "Under these circumstances, I find that Mr. Phillips took reasonable precautions in reviewing and producing the documents. While he obviously missed one, this mistake does not make his process per se unreasonable. Nor does the fact that Mr. Phillips was the only person to conduct a privilege review before producing the documents render that review unreasonable. Mr. Phillips is a licensed, experienced attorney who states that he personally reviewed each page before producing the documents at issue. Had he delegated this task to a non-lawyer, with no review by an attorney, I would have no trouble finding that the process was unreasonable. However, litigation is already expensive enough. When an experienced attorney personally reviews every document before production, I am not going to find that he or she acted unreasonably simply because another person was not asked to repeat the same task.")

Case Date Jurisidction State Cite Checked
2014-04-25 Federal IA

Chapter: 27.1203

Case Name: Jefferson v. Dominion Holdings, Inc., C.A. No. 8663-VCN, 2013 Del. Ch. LEXIS 301, at *7 (Del. Ch. Dec. 13, 2013)
(holding that the parties' claw-back agreement used the inadvertent standard and the prompt remedial step standard; finding that an inadvertent disclosure did not waive the privilege protection; "The process used by Source4 [defendant] to review the materials produced for privilege was reasonable. Two lawyers -- with different perspectives (corporate and trial) --reviewed the documents. It may be hard to understand why the privileged materials were missed among only 330 pages, but the number of pages is not determinative. Although perhaps rushed, there is no reason to doubt that an adequate commitment of resources was devoted to the review effort.")

Case Date Jurisidction State Cite Checked
2013-12-13 State DE B 5/14

Chapter: 27.1203

Case Name: Jefferson v. Dominion Holdings, Inc., C.A. No. 8663-VCN, 2013 Del. Ch. LEXIS 301, at *6 7 (Del. Ch. Dec. 13, 2013)
(holding that the parties' claw-back agreement used the inadvertent standard and the prompt remedial step standard; finding that an inadvertent disclosure did not waive the privilege protection; "Only 330 pages of documents were produced. This is not an instance in which so many documents were produced that failure to claim privilege seems to have been an inevitability. Corporate counsel and trial counsel both reviewed the documents before their production. Both missed what seems to be a rather obvious claim of privilege. Part of the problem may have been the rush near a discovery deadline. Apparently, the bulk of the privileged information comprised only a few lines of a four-page document.")

Case Date Jurisidction State Cite Checked
2013-12-13 State DE B 5/14

Chapter: 27.1203

Case Name: BNP Paribas Mortg. Corp. v. Bank of Am., N.A., Nos.09 Civ. 9783 & 9784 (RWS), 2013 U.S. Dist. LEXIS 75402, at *12-1,. *13 (S.D.N.Y. May 21, 2013)
(holding that an inadvertent production did not result in a waiver, relying on the Lois Sportswear (Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103 (S.D.N.Y. 1985)) factors; (holding that an inadvertent production did not result in a waiver, relying on the Lois Sportswear factors; "The Wilson Declaration describes the document review procedures employed in the instant case. Documents were collected for review from hard copy and electronic files, and then processed and loaded into an online document review platform maintained by an external vendor. . . . The review process involved a team of up to 40 contract employees, each trained to identify privilege issues and provided with lists of attorneys' names and firms who represented BNP during the relevant time period. . . . Contract attorneys' training was periodically updated through additional written materials, regular communications between Boies Schiller attorneys and the contract attorney review team leader, and periodic in-person discussions addressing questions about privilege."; "Such processes of review are consistent with those frequently employed in complex litigation and previously considered reasonable by courts.")

Case Date Jurisidction State Cite Checked
2013-05-21 Federal NY B 3/14

Chapter: 27.1203

Case Name: Prowess, Inc. v. RaySearch Labs. AB, Civ. No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 67047, at *12 (D. Md. May 9, 2013)
(applying Rule 502 and finding that an inadvertent production of documents does not cause a waiver; "Prowess also took reasonable steps to prevent disclosure. Prowess hired contract attorneys to review for privilege, trained the contract attorneys and instituted guidelines for their review, and had supervising attorneys review the work of the contract attorneys to check for errors.")

Case Date Jurisidction State Cite Checked
2013-05-09 Federal MD B 3/14

Chapter: 27.1203

Case Name: Clark Cnty. v. Jacobs Facilities, Inc., Case No. 2:10 cv 00194 LRH PAL, 2012 U.S. Dist. LEXIS 141651, at *29, *36 (D. Nev. Oct. 1, 2012)
(analyzing the inadvertent disclosure of privileged documents in a litigation in which the litigants had agreed to a claw back order (which used the term "inadvertent" and required the producing party to "immediately" alert the receiving party of any inadvertent disclosure of privileged communications); "Three different levels of privilege review were conducted, initially by a paralegal, then by an associate attorney, and finally by an officer of the law firm."; ultimately holding that the inadvertent disclosure of privileged documents did not result in a waiver)

Case Date Jurisidction State Cite Checked
2012-10-01 Federal NV B 12/13

Chapter: 27.1203

Case Name: Adair v. EQT Prod. Co., Case Nos. 1:10CV00037 & 41, 2012 U.S. Dist. LEXIS 90250, at *3, *9 n.4, *10-11 n.5, *11-12, *12-13, *13, *15; *16-17 (W.D. Va. June 29, 2012)