McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 366 of 366 results

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 Jurisdiction 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 Jurisdiction State Cite Checked
2015-08-28 Federal WV

Chapter: 27.7
Case Name: Crabtree v. Experian Information Solutions, Inc., No. 1:16-cv-10706, 2017 U.S. Dist. LEXIS 173905, at *4 (N.D. Ill. Oct. 20, 2017)
January 10, 2018 (PRIVILEGE POINT)

"When Can the Privilege Protect Employee-to-Employee Communications?"

Because privilege logs generally list the authors and recipients of withheld communications, corporations' adversaries frequently cite such logs in challenging the corporations' privilege claims when a log shows that no lawyer sent or received a withheld document. Corporations normally win such disputes if they demonstrate that one employee who received legal advice relayed it to another employee who needed it. Occasionally corporations also successfully withhold employees' contemporaneous notes of a privileged communication.

But there is a third, albeit less frequent, scenario in which the privilege can protect intra-corporate communications not involving a lawyer. In Crabtree v. Experian Information Solutions, Inc., the court held that defendant corporation "appropriately designated as privileged the communications between its non-lawyer employees." No. 1:16-cv-10706, 2017 U.S. Dist. LEXIS 173905, at *4 (N.D. Ill. Oct. 20, 2017). The court noted that the "employees gathered information to assist counsel with rendering legal advice," and that "those facts were eventually channeled to counsel to aid in the provision of legal services." Id. at *5. In other words, company lawyers had essentially deputized such employees to gather facts the lawyers needed. Of course, wise in-house and outside lawyers memorialize such deputization.

Case Date Jurisdiction State Cite Checked
2017-10-20 Federal IL
Comment:

key case


Chapter: 27.17
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Rule 502(d), however, allows a federal court to enter an order that the attorney-client or work product privilege 'is not waived by disclosure connected with the litigation pending before the court -- in which event the disclosure is also not a waiver in any other federal or state proceeding.' Fed. R. Evid. 502(d). In this case, the parties' agreed, court-entered protective order provides that the claw-back and non-waiver provisions for inadvertent disclosures are and 'shall be construed as, an Order under Rule 502(d).' D.E. 194 ¶ 18. MMO argues that because the parties obtained a Rule 502(d) order to govern inadvertent production of privileged material, the Court should not apply Rule 502(b) to analyze waiver."; "Defendants argue that the protective order does not override Rule 502(b). They cite a litany of out-of-circuit cases to argue that '[a]lthough Rule 502 recognizes that the default test set forth in subsection (b) may be superseded by court order or agreement of parties, see Fed. R. Evid. 502(d), (e), such an order or agreement must provide concrete directives' that correspond to each element of Rule 502(b)."; "The Seventh Circuit has not addressed this issue. Nor have courts in the Northern District of Illinois taken a uniform approach."; "The Court concludes that the parties' protective order governs inadvertent disclosures; Rule 502(b) does not. Paragraph 18 of the protective order states that it 'is, and shall be construed as, an Order under Rule 502(d).' D.E. 194 ¶ 18. It also reiterates the non-waiver language from Rule 502(d) and quotes from the Rule. Id. Paragraphs Four and Seventeen of the protective order likewise contain non-waiver language, and Paragraph Four states that the purpose of the protective order is to 'facilitat[e] the exchange of information . . . without involving the Court unnecessarily.' Id. ¶ 4. These drafting choices reflect the parties' intent to create their own guidelines to address inadvertent disclosure and to avoid waiver-related litigation under Rule 502(b).")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL
Comment:

key case


Chapter: 27.18
Case Name: United States v. Brewington, Crim. Case No. 15-cr-00073-PAB, 2018 U.S. Dist. LEXIS 30425 (D. Colo. Feb. 26, 2018)
(holding that an inadvertent disclosure resulted in a waiver; explaining that the documents' owner did not take reasonable precautions on the owner's own, but that the government did take reasonable precautions and collected the documents and used a "filter team" to review the documents; "Applying Fed. R. Evid. 502(b) to the above findings, the Court determines that Mr. Elrod has waived his privilege with respect to the documents that he downloaded himself, but not with respect to those that were downloaded by the government's IT employee. Therefore, the Court will order the production of those documents that Mr. Elrod downloaded himself on the grounds that he has waived his attorney-client privilege."; "Defendant argues that Mr. Elrod has failed to take reasonable steps to rectify the production of privileged documents because he did not personally, or through his attorney, act to rectify the production of privileged materials, but instead allowed the government to take remedial steps. Docket No. 145 at 4-5; see Fed. R. Evid. 502, Advisory Committee Notes of Subdivision (b) ('The 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. But the rule does require the producing party to follow up on any obvious indications that a protected communication or information has been produced inadvertently.'). The Court finds that, under the circumstances, Mr. Elrod's actions in allowing the government to perform a privilege review is consistent with maintaining his privilege. In the context of criminal investigations, the government frequently conducts privilege reviews of seized documents to avoid intruding into suspects' attorney-client privilege. . . . Although the documents here were produced voluntarily, Mr. Elrod could reasonably consent, after Ms. Ballantyne brought the issue to Mr. Elrod's attention, to the government performing the privilege review to rectify the production error because the government was already in possession of the produced materials. . . . Accordingly, the Court finds that Mr. Elrod took reasonable steps to rectify the production error.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal CO

Chapter: 27.18
Case Name: Poole v. Gaston County, Civ. A. No. 3:15-CV-309-DCK, 2017 U.S. Dist. LEXIS 72802 (W.D.N.C. May 12, 2017)
(holding that a testifying expert must disclose a video tape he reviewed, even though the plaintiff testified that the video tape was disclosed to the testifying expert inadvertently; "The undersigned finds that Fed.R.Civ.P. 26(a)(2)(B), and the Advisory Committee Notes and cases addressing that Rule, favor production of the materials provided to Plaintiff's expert, even if they were provided inadvertently.")

Case Date Jurisdiction State Cite Checked
2017-05-12 Federal NC

Chapter: 27.18
Case Name: MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Ore. May 4, 2017)
(holding that the privilege protected communications between defendant café's lawyer and a former employee, even though the former employee might have been adverse to the former employer café, and even though they met at the café; also holding that the former employee's testimony that he had not disclosed to his lawyer some fact did not result in a waiver; "the Court agrees with Defendant that its counsel immediately objected to Plaintiff's attorney's question and that Virgen's single word response did not constitute a waiver. Defendant's attorney's timely objection constitutes a reasonable step to prevent and rectify inadvertent disclosure under Federal Rule of Evidence 502(b). Accordingly, the Court finds that Virgen's disclosure did not operate as a waiver.")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal OR

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2017-03-20 Federal FL

Chapter: 27.404
Case Name: Sanchez v. Maquet Getinge Group, Dkt. No. A-4994-15T4, 2018 N.J. Super. Unpub. LEXIS 1199 (N.J. Super. May 23, 2018)
(disqualifying a law firm for failing to alert the adversary and return documents that the law firm's client allegedly purloined from the employer being represented by the law firm; "In October 2015, defendant served plaintiff with its First Request for Production of Documents. Defendant's request focused on retrieving purported confidential or proprietary documents that plaintiff had taken from MAQUET during the time he worked at the company."; "With respect to the disqualification of plaintiff's counsel, the judge found Barber and Niedweske Barber Hager, LLC 'knew or should have known the material was privileged.' The judge particularly noted counsel's failure 'to promptly notify the opposing side that they had received its privileged information.' The judge made the following specific findings: 'They did not notify their adversary that privileged communications were in their possession until February, 2016. Nine (9) months passed before Mr. Barber or [Niedweske Barber Hager, LLC] notified the Defendants.' 'R.P.C. 4.4(b), which states, '[a] lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, promptly notify the sender, and return the document to the sender.'. . . [T]here is no denying that there was 'reasonable cause to believe' that the documents were privileged. The documents were quite clearly labeled as attorney-client privileged communications and expressly involved MAQUET's General Counsel."; "On the issue of prejudice to plaintiff if his counsel was disqualified, the judge did not find any facts that plaintiff would be harmed in the prosecution of this case nor that he would be unable to secure competent substitute counsel. The judge especially noted that the parties were still at the beginning of the discovery phase. In an order dated June 9, 2016, the judge disqualified Barber and Niedweske Barber Hager, LLC from serving as counsel for plaintiff in this matter.")

Case Date Jurisdiction State Cite Checked
2018-05-23 State NJ

Chapter: 27.404
Case Name: Greater N.Y. Taxi Assoc. v. City of New York, 13-cv-3089 (VSB) (RWL), 2018 U.S. Dist. LEXIS 80069 (S.D.N.Y. May 8, 2018)
(holding that a litigant should have stopped reviewing documents that the adversary had sought to claw-back, but declining to sanction the litigant for reading those documents before returning them; "Plaintiffs claim that they were entitled to review the clawed back documents during the five-day window, while Defendants contend that the five-day window was created because 'locating and destroying the cited documents in all forms might be time-consuming [and those] timelines were not designed . . . to allow parties to review privileged documents.'. . . Defendants are correct. Upon being notified that the documents were privileged, Plaintiffs should have immediately ceased their review of the clawed back documents. The Court declines to award sanctions at this juncture but admonishes Plaintiffs to strictly comply with any future clawback requests.")

Case Date Jurisdiction State Cite Checked
2018-05-08 Federal NY

Chapter: 27.404
Case Name: Bona Fide Conglomerate, Inc. v. United States Dist. Court, No. 17-70130, 2018 U.S. App. LEXIS 7649 (9th Cir. App. March 27, 2018)
(analyzing the inadvertent disclosure of privileged communications; finding that a company's lawyer had acted improperly by keeping and not disclosing the inadvertent transmission of a privileged document; finding an ethics violation and disqualifying the lawyer; "Under California law, when (1) a lawyer 'receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged,' and (2) 'it is reasonably apparent that the materials were provided or made available through inadvertence,' that lawyer (1) 'should refrain from examining the materials any more than is essential to ascertain if the materials are privileged,' and (2) '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 . . .' Id. . . ."; "For a period of almost two years, Cragg and Bona Fide maintained that no privileged information was in their possession and that any privilege was waived. Cragg possessed even more recordings than SourceAmerica initially realized, and his stance never wavered even after a federal court in a different case expressed concern that these same recordings contained privileged communications. On this record, the district court did not clearly err in concluding that Cragg violated his ethical duties under California law.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal

Chapter: 27.404
Case Name: Bona Fide Conglomerate, Inc. v. United States Dist. Court, No. 17-70130, 2018 U.S. App. LEXIS 7649 (9th Cir. App. March 27, 2018)
(analyzing the inadvertent disclosure of privileged communications; finding that a company's lawyer had acted improperly by keeping and not disclosing the inadvertent transmission of a privileged document; finding an ethics violation and disqualifying the lawyer; "Under California law, when (1) a lawyer 'receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged,' and (2) 'it is reasonably apparent that the materials were provided or made available through inadvertence,' that lawyer (1) 'should refrain from examining the materials any more than is essential to ascertain if the materials are privileged,' and (2) '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 . . .' Id. . . ."; "For a period of almost two years, Cragg and Bona Fide maintained that no privileged information was in their possession and that any privilege was waived. Cragg possessed even more recordings than SourceAmerica initially realized, and his stance never wavered even after a federal court in a different case expressed concern that these same recordings contained privileged communications. On this record, the district court did not clearly err in concluding that Cragg violated his ethical duties under California law.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal

Chapter: 27.404
Case Name: SEC v. Lek, 17cv1789 (DLC), 2018 U.S. Dist. LEXIS 6704 (S.D.N.Y. Jan. 16, 2018)
(declining to disqualify SEC lawyers for reading privileged documents it obtained from a third party; "Applying these principles, Avalon's motion is denied. The SEC's conduct in connection with the Avalon Account documents has neither violated the principles that underlie our system's respect for the attorney client privilege nor infringed on the integrity of the judicial process. Avalon had identified the Avalon Account as its regular business account. Nonetheless, the SEC used caution before receiving the Avalon Account documents from the DNJ. It provided the DNJ with a list of Filter Terms, and when it spotted a document that had escaped a filter review, it returned the entire set of documents for re-screening. This careful approach reflects respect for the privilege."; "As significantly, there is a danger that the motion to disqualify the entire SEC trial team from an investigation that has been ongoing since 2013 is tactically motivated. Avalon has not shown that it has suffered any prejudice from the SEC's possession of the Avalon Account documents. To the contrary, among the documents are items that the SEC finds highly relevant to its claims in this litigation, but that Avalon and Fayyer failed to produce when required to do so pursuant to administrative subpoenas, and for which Avalon makes no claim of privilege. Moreover, assuming for the purposes of this motion that the four documents are indeed privileged, it appears that the SEC trial team has only reviewed one of the four documents, the Fayyer Notes. Avalon has not pointed to any statement in the Notes, however, that is at odds with the positions it has taken publicly in opposition to the SEC's litigation or that reveals any undisclosed litigation strategy or statement harmful to Avalon. Even with respect to the other three documents, Avalon does not indicate how the lists of names of individuals or entities associated with Avalon would be a disclosure of information with which the SEC was not otherwise familiar, or why the information about the 2010 loan is significant.")

Case Date Jurisdiction State Cite Checked
2018-01-16 Federal NY

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 Jurisdiction 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 Jurisdiction State Cite Checked
2017-04-18 Federal CA
Comment:

key case


Chapter: 27.404
Case Name: McDermott Will & Emery LLP v. Superior Court, 217 Cal. Rptr. 3d 47 (Cal. Ct. App. 2017)
June 21, 2017 (PRIVILEGE POINT)

"Reading Inadvertently Disclosed Privileged Documents Risks Disqualification"

Nearly every case focusing on inadvertently disclosed privileged communications (during document productions or at other times) focuses on the privilege waiver implications. However, the stakes can be much higher.

McDermott Will & Emery LLP v. Superior Court, 217 Cal. Rptr. 3d 47 (Cal. Ct. App. 2017), one member of a feuding family accidentally emailed a privileged communication to the other side of the family. That document eventually fell into the hands of Gibson Dunn, which represented the other side's ally. The trial court concluded that the accidental email disclosure did not waive the privilege – and then disqualified Gibson Dunn for having read and relied on the inadvertently disclosed document. The appellate court agreed.

Unless there is a need for speed, lawyers receiving an adversary's obviously privileged communications (during document productions or at other times) normally would be wise to wait until a court deals with the privilege waiver issue before reading or relying on them.

Case Date Jurisdiction State Cite Checked
2017-01-01 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2015-12-22 Federal ID

Chapter: 27.602
Case Name: Marine Industrial Construction, LLC v. United States, No. 15-1189C, 2018 U.S. Claims LEXIS 1161 (Fed. Cl. Sept. 14, 2018)
(finding that plaintiff had not complied with its obligation to return documents the government claimed it have inadvertently produced; "The Court also agrees with the government that MIC has not met its obligations under RCFC 26 to return, destroy, or file under seal, any documents that the government inadvertently disclosed, once MIC received notice of the government's privilege assertions."; "It is undisputed that, after the government inadvertently produced certain documents related to DOF's consulting work, the government notified MIC of its objection to the disclosure of these documents."; "MIC acknowledges that, after being notified of the government's privilege assertions, it did not return or destroy the documents that the government inadvertently disclosed. . . . nonetheless, argues that it had no obligation to do so because the parties stipulated to other arrangements regarding the treatment of these documents. Id.; see also RCFC 29. But, even if true, MIC does not explain why it failed to file these documents under seal when MIC filed its motion to compel, as required by RCFC 26.")

Case Date Jurisdiction State Cite Checked
2018-09-14 Federal Other

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2010-01-01 State VA

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 Jurisdiction 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 Jurisdiction State Cite Checked
2014-01-01 Federal CT B 8/14

Chapter: 27.702
Case Name: Monco v. Zoltek Corp., No. 17 C 6882, 2018 U.S. Dist. LEXIS 117940 (N.D. Ill. July 16, 2018)
(realizing the common interest doctrine application and work product issues in a law firm's lawsuit to collect its fees from a former client; focusing on communications between defendant's founder and another company with whom the founder negotiated a transfer of the patent to the founder; "The document was only discovered because Zoltek Corporation produced – 'inadvertently,' it claims -- an email chain referring to the document. In such an instance, a court should have no qualms about finding the party engaging in such a tactic has waived its privilege as to that document."; "As for the email chain that referenced the draft agreement, there is no doubt that it was produced unwittingly -- but not in the sense that Rule 502 uses the term, 'inadvertently.' After all, it was the document that revealed Zoltek Corporation's studied attempt to withhold documents it had been ordered to produce on April 10th, and to withhold them without a claim of privilege or privilege log. Thus, its production from Plaintiffs' perspective was definitely a blunder; but it was not an 'inadvertent disclosure,' as the cases define the term.")

Case Date Jurisdiction State Cite Checked
2018-07-16 Federal IL

Chapter: 27.702
Case Name: Raynor v. District of Columbia, Civ. A. No. 14-0750 (RC), 2018 U.S. Dist. LEXIS 23227 (D.D.C. Feb. 12, 2018)
(holding that a protective order did not apply to documents that had been inadvertently disclosed earlier, so the litigant could not rely on the protective order to claw-back the documents; "Although the District claims that the production of privileged material in this matter was inadvertent, that fact is far from clear. Indeed, it appears more likely that different reviewers redacted multiple versions of the same document in different ways based on their different understanding of the privilege's application -- not inadvertence due to matters slipping through the cracks in a large production. Nevertheless, the Court will assume for purposes of this motion that, in fact, the information was produced inadvertently.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal DC

Chapter: 27.702
Case Name: irth Sols., LLC v. Windstream Communs., LLC, Case No. 2:16-cv-219, 2018 U.S. LEXIS 12724 (S.D. Ohio Jan. 26, 2018)
(holding that a claw-back agreement did not automatically entitle a producing party to claw-back documents if it was "completely reckless" in having disclosed them; "[T]he remaining two elements of Rule 502(b)'s three-part test for waiver, the magistrate judge addressed the interplay between Rule 502(b) and the parties' clawback agreement. Under Rule 502(e), parties may agree on the effect of disclosure in a federal proceeding, and courts have recognized the ability of parties to contract away from Rule 502(b)'s test for waiver. The magistrate reviewed the three different approaches that courts have taken on the matter: (1) 'that a clawback arrangement (no matter how cursory) requires the return of inadvertently produced documents, regardless of the care taken by the producing party'; (2) 'that where there is a protective order with a clawback provision, inadvertent production of a document does not constitute waiver unless the document production process itself was completely reckless'; and (3) that 'the requirements of Rule 502(b) can be superseded by a clawback agreement only to the extent such an order or agreement provides concrete directives regarding each prong of Rule 502(b) i.e., (1) what constitutes inadvertence; (2) what precautionary measures are required; and (3) what the privilege holder's post-production responsibilities are to escape waiver.'"; "Noting that the Sixth Circuit has not yet addressed the issue, the magistrate rejected the first approach because allowing attorneys to agree to a clawback irrespective of the care they took during production 'would undermine the lawyer's responsibility to protect the sanctity of the attorney-client privilege.'. . . She further found that, in any event, the clawback agreement in this case did not contain language that would have eliminated the duty of pre-production review or provided for non-waiver regardless of the care taken by the producing party."; "The magistrate found that waiver had occurred under both the second and third approaches; thus, she did not find it necessary to choose one approach over the other. She found under the second approach that defense counsel was completely reckless because, among other things: Ms. Black failed to become familiarized with the identity of in-house counsel; 'the documents contain obviously privileged material on their face'; the privileged documents were not a needle-in-the-haystack but comprised 'more than 10% of the entire production' of 1400 readable pages; and counsel 'produced the exact same documents again — while simultaneously asking this Court to protect its privilege.'"; "Under the third approach, the magistrate found that the parties' clawback agreement was 'cursory' because the agreement, while stating that inadvertent disclosure would not waive the privilege, did not define what constitutes inadvertence or state what precautionary measures, if any, should be taken to prevent disclosure. . . . This meant that the duty under Rule 502(b)(2) to take 'reasonable steps to prevent disclosure' was not displaced. The magistrate found that defense counsel did not take reasonable steps to prevent disclosure for the same reasons that she found counsel's conduct to be completely reckless. Id. (noting further that 'defendant had months to review the documents')."; "Having concluded that defendant waived its attorney-client privilege, the magistrate determined that the waiver was limited to the 43 documents and did not constitute a full-subject matter waiver."; "The Court finds that defendant has not demonstrated that the magistrate judge's rejection of the first approach is clearly erroneous or contrary to law. Indeed, the Court agrees fully with the magistrate judge's analysis and adopts it as its own. The Court finds that Rule 502(b)(2) provides an important safeguard of the attorney-client privilege and that if parties wish to remove that safeguard, their agreement must reflect such an understanding. As the magistrate noted, the clawback agreement here lacked any language to support a finding that the parties came to an understanding that there would be no pre-production review.")

Case Date Jurisdiction State Cite Checked
2018-01-26 Federal OH
Comment:

key case


Chapter: 27.703
Case Name: Monco v. Zoltek Corp., No. 17 C 6882, 2018 U.S. Dist. LEXIS 117940 (N.D. Ill. July 16, 2018)
(realizing the common interest doctrine application and work product issues in a law firm's lawsuit to collect its fees from a former client; focusing on communications between defendant's founder and another company with whom the founder negotiated a transfer of the patent to the founder; "The document was only discovered because Zoltek Corporation produced – 'inadvertently,' it claims -- an email chain referring to the document. In such an instance, a court should have no qualms about finding the party engaging in such a tactic has waived its privilege as to that document."; "As for the email chain that referenced the draft agreement, there is no doubt that it was produced unwittingly -- but not in the sense that Rule 502 uses the term, 'inadvertently.' After all, it was the document that revealed Zoltek Corporation's studied attempt to withhold documents it had been ordered to produce on April 10th, and to withhold them without a claim of privilege or privilege log. Thus, its production from Plaintiffs' perspective was definitely a blunder; but it was not an 'inadvertent disclosure,' as the cases define the term.")

Case Date Jurisdiction State Cite Checked
2018-07-16 Federal IL

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2014-02-10 Federal NY B 7/14

Chapter: 27.1002
Case Name: Winfield v. City of New York, 15-cv-05236 (LTS) (KHP), 2018 U.S. Dist. LEXIS 79281 (S.D.N.Y. May 10, 2018)
(declining to order a "quick peek" of protected documents, and appointing a Special Master to review withheld documents; "At the case management conference on May 7, 2018, Plaintiffs' counsel indicated that, absent this Court granting a compelled 'quick peek' procedure, they would request in camera review of all of the documents being withheld by the City as privileged. The task of reviewing 3,300 documents is enormous and one that this Court cannot complete before the end of fact discovery on July 31, 2018 given other demands in this and other cases. Appointment of a Special Master to conduct the privilege review pursuant to Rule 53 is therefore warranted. The scope of the appointment will be to prepare a report the recommends to the Court (1) documents, identified by privilege log number, that the City has improperly withheld and must produce, and (2) documents, identified by privilege log number, that are partially privileged and that the City must produce in redacted form."; "This Court proposes the appointment of the Honorable Frank Maas (Ret.) of JAMS, who recently retired as a Magistrate Judge in this District and is available to conduct a review. In accordance with Rule 53(b)(1), the parties may file a letter regarding their position on the appointment of a Special Master, whether they have identified any conflict-of-interest issues that would preclude appointment of Judge Maas, and suggest other candidates for appointment if they so desire. The parties shall file their letters by no later than May 16, 2018."; "Given the costs of a Special Master, Plaintiffs are directed to evaluate whether they can narrow the documents for review so as to reduce the time and thus the costs of the review.")

Case Date Jurisdiction State Cite Checked
2018-05-10 Federal NY

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 Jurisdiction State Cite Checked
2014-07-02 Federal NY

Chapter: 27.1003
Case Name: irth Sols., LLC v. Windstream Communs., LLC, Case No. 2:16-cv-219, 2018 U.S. LEXIS 12724 (S.D. Ohio Jan. 26, 2018)
(holding that a claw-back agreement did not automatically entitle a producing party to claw-back documents if it was "completely reckless" in having disclosed them; "[T]he remaining two elements of Rule 502(b)'s three-part test for waiver, the magistrate judge addressed the interplay between Rule 502(b) and the parties' clawback agreement. Under Rule 502(e), parties may agree on the effect of disclosure in a federal proceeding, and courts have recognized the ability of parties to contract away from Rule 502(b)'s test for waiver. The magistrate reviewed the three different approaches that courts have taken on the matter: (1) 'that a clawback arrangement (no matter how cursory) requires the return of inadvertently produced documents, regardless of the care taken by the producing party'; (2) 'that where there is a protective order with a clawback provision, inadvertent production of a document does not constitute waiver unless the document production process itself was completely reckless'; and (3) that 'the requirements of Rule 502(b) can be superseded by a clawback agreement only to the extent such an order or agreement provides concrete directives regarding each prong of Rule 502(b) i.e., (1) what constitutes inadvertence; (2) what precautionary measures are required; and (3) what the privilege holder's post-production responsibilities are to escape waiver.'"; "Noting that the Sixth Circuit has not yet addressed the issue, the magistrate rejected the first approach because allowing attorneys to agree to a clawback irrespective of the care they took during production 'would undermine the lawyer's responsibility to protect the sanctity of the attorney-client privilege.'. . . She further found that, in any event, the clawback agreement in this case did not contain language that would have eliminated the duty of pre-production review or provided for non-waiver regardless of the care taken by the producing party."; "The magistrate found that waiver had occurred under both the second and third approaches; thus, she did not find it necessary to choose one approach over the other. She found under the second approach that defense counsel was completely reckless because, among other things: Ms. Black failed to become familiarized with the identity of in-house counsel; 'the documents contain obviously privileged material on their face'; the privileged documents were not a needle-in-the-haystack but comprised 'more than 10% of the entire production' of 1400 readable pages; and counsel 'produced the exact same documents again — while simultaneously asking this Court to protect its privilege.'"; "Under the third approach, the magistrate found that the parties' clawback agreement was 'cursory' because the agreement, while stating that inadvertent disclosure would not waive the privilege, did not define what constitutes inadvertence or state what precautionary measures, if any, should be taken to prevent disclosure. . . . This meant that the duty under Rule 502(b)(2) to take 'reasonable steps to prevent disclosure' was not displaced. The magistrate found that defense counsel did not take reasonable steps to prevent disclosure for the same reasons that she found counsel's conduct to be completely reckless. Id. (noting further that 'defendant had months to review the documents')."; "Having concluded that defendant waived its attorney-client privilege, the magistrate determined that the waiver was limited to the 43 documents and did not constitute a full-subject matter waiver."; "The Court finds that defendant has not demonstrated that the magistrate judge's rejection of the first approach is clearly erroneous or contrary to law. Indeed, the Court agrees fully with the magistrate judge's analysis and adopts it as its own. The Court finds that Rule 502(b)(2) provides an important safeguard of the attorney-client privilege and that if parties wish to remove that safeguard, their agreement must reflect such an understanding. As the magistrate noted, the clawback agreement here lacked any language to support a finding that the parties came to an understanding that there would be no pre-production review.")

Case Date Jurisdiction State Cite Checked
2018-01-26 Federal OH
Comment:

key case


Chapter: 27.1003
Case Name: Lloyds of London Syndicate 2003 v. Fireman's Fund Ins. Co., Case No. 15-CV-2681-DDC-GLR, 2017 U.S. Dist. LEXIS 104130 (D. Kansas July 6, 2017)
(holding that the testifying expert's inadvertent disclosure of privileged documents to the plaintiff did not waive privilege protection under Rule 502; "Even after the enactment of Rule 502 in 2008, our court has continued to apply the five-factor test to determine whether a party has waived work product protection.")

Case Date Jurisdiction State Cite Checked
2017-07-06 Federal KS

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2014-06-20 Federal OR

Chapter: 27.1102
Case Name: Viamedia, Inc. v. Comcast Corporation, Case No. 16-cv-5486, 2017 U.S. Dist. LEXIS 101852 (N.D. Ill. June 30, 2017)
(holding that an inadvertent disclosure to the Department of Justice did not waive privilege protection; "[T]he Court has reviewed the documents in question in camera and many of them are fairly mundane emails that would not scream out as obviously privileged and do not appear to advance any potential claim against Comcast. This further suggests that Viamedia's disclosure was inadvertent.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal IL

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2009-11-23 Federal ID

Chapter: 27.1103
Case Name: Carmody v. Board of Trustees of the Universitiy of Illinois, No. 16-1335, 2018 U.S. App. LEXIS 16425 (7th Cir. App. June 19, 2018)
(analyzing the implications of the inadvertent disclosure of privileged documents under mysterious circumstances; "The district court correctly found that the defendants did not waive the privilege. First, the production of the privileged document was clearly inadvertent; there is no indication that defendants intended to waive the privilege or to produce the document.")

Case Date Jurisdiction State Cite Checked
2018-06-19 State IL

Chapter: 27.1103
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Because the Court has held that the parties' protective order governs the issue of waiver for inadvertently produced privileged documents, the Court must decide whether MMO's production was inadvertent. The protective order does not define 'inadvertent,' so the Court follows its plain meaning. . . . The dictionary defines inadvertent as 'not focusing the mind on a matter,' or 'unintentional.' See, e.g., Merriam-Webster Dictionary Online, available at https://www.merriam-webster.com/dictionary/inadvertent (last visited Mar. 13, 2018). This definition is consistent with the standard that the majority of courts in this District use to determine whether a disclosure is inadvertent under Rule 502(b)(1).")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL

Chapter: 27.1103
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Defendants argue that even if the parties' protective order supersedes Rule 502(b), MMO separately waived the privilege for Exhibit E (and by extension Exhibit F) by failing to object when defendants used Exhibit E during Dr. Canaday's deposition, allowing Dr. Canaday to testify about it for approximately ten minutes, and waiting seven days to claw it back. Defendants support their argument with a district court decision holding that 'failure to timely object to the introduction of an exhibit [during deposition] waives any privilege, regardless of the presence of a claw-back provision' that is 'intended to override the common law as to inadvertent disclosure.'"; "[T]he Court believes that assessing defendants' separate waiver argument would amount to performing a Rule 502(b)(3) analysis under a different name. Doing so would be inconsistent with the Court's determination that the parties intended for their protective order to override Rule 502(b). The Court therefore rejects defendants' separate waiver argument for Goroff Exhibits E and F.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL

Chapter: 27.1103
Case Name: Raynor v. District of Columbia, Civ. A. No. 14-0750 (RC), 2018 U.S. Dist. LEXIS 23227 (D.D.C. Feb. 12, 2018)
(holding that a protective order did not apply to documents that had been inadvertently disclosed earlier, so the litigant could not rely on the protective order to claw-back the documents; "Although the District claims that the production of privileged material in this matter was inadvertent, that fact is far from clear. Indeed, it appears more likely that different reviewers redacted multiple versions of the same document in different ways based on their different understanding of the privilege's application -- not inadvertence due to matters slipping through the cracks in a large production. Nevertheless, the Court will assume for purposes of this motion that, in fact, the information was produced inadvertently.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal DC

Chapter: 27.1103
Case Name: irth Sols., LLC v. Windstream Communs., LLC, Case No. 2:16-cv-219, 2018 U.S. LEXIS 12724 (S.D. Ohio Jan. 26, 2018)
(holding that a claw-back agreement did not automatically entitle a producing party to claw-back documents if it was "completely reckless" in having disclosed them; "[T]he remaining two elements of Rule 502(b)'s three-part test for waiver, the magistrate judge addressed the interplay between Rule 502(b) and the parties' clawback agreement. Under Rule 502(e), parties may agree on the effect of disclosure in a federal proceeding, and courts have recognized the ability of parties to contract away from Rule 502(b)'s test for waiver. The magistrate reviewed the three different approaches that courts have taken on the matter: (1) 'that a clawback arrangement (no matter how cursory) requires the return of inadvertently produced documents, regardless of the care taken by the producing party'; (2) 'that where there is a protective order with a clawback provision, inadvertent production of a document does not constitute waiver unless the document production process itself was completely reckless'; and (3) that 'the requirements of Rule 502(b) can be superseded by a clawback agreement only to the extent such an order or agreement provides concrete directives regarding each prong of Rule 502(b) i.e., (1) what constitutes inadvertence; (2) what precautionary measures are required; and (3) what the privilege holder's post-production responsibilities are to escape waiver.'"; "Noting that the Sixth Circuit has not yet addressed the issue, the magistrate rejected the first approach because allowing attorneys to agree to a clawback irrespective of the care they took during production 'would undermine the lawyer's responsibility to protect the sanctity of the attorney-client privilege.'. . . She further found that, in any event, the clawback agreement in this case did not contain language that would have eliminated the duty of pre-production review or provided for non-waiver regardless of the care taken by the producing party."; "The magistrate found that waiver had occurred under both the second and third approaches; thus, she did not find it necessary to choose one approach over the other. She found under the second approach that defense counsel was completely reckless because, among other things: Ms. Black failed to become familiarized with the identity of in-house counsel; 'the documents contain obviously privileged material on their face'; the privileged documents were not a needle-in-the-haystack but comprised 'more than 10% of the entire production' of 1400 readable pages; and counsel 'produced the exact same documents again — while simultaneously asking this Court to protect its privilege.'"; "Under the third approach, the magistrate found that the parties' clawback agreement was 'cursory' because the agreement, while stating that inadvertent disclosure would not waive the privilege, did not define what constitutes inadvertence or state what precautionary measures, if any, should be taken to prevent disclosure. . . . This meant that the duty under Rule 502(b)(2) to take 'reasonable steps to prevent disclosure' was not displaced. The magistrate found that defense counsel did not take reasonable steps to prevent disclosure for the same reasons that she found counsel's conduct to be completely reckless. Id. (noting further that 'defendant had months to review the documents')."; "Having concluded that defendant waived its attorney-client privilege, the magistrate determined that the waiver was limited to the 43 documents and did not constitute a full-subject matter waiver."; "The Court finds that defendant has not demonstrated that the magistrate judge's rejection of the first approach is clearly erroneous or contrary to law. Indeed, the Court agrees fully with the magistrate judge's analysis and adopts it as its own. The Court finds that Rule 502(b)(2) provides an important safeguard of the attorney-client privilege and that if parties wish to remove that safeguard, their agreement must reflect such an understanding. As the magistrate noted, the clawback agreement here lacked any language to support a finding that the parties came to an understanding that there would be no pre-production review.")

Case Date Jurisdiction State Cite Checked
2018-01-26 Federal OH
Comment:

key case


Chapter: 27.1103
Case Name: Irth Solutions, LLC v. Windstream Communications LLC, Civ. A. 2:16-cv-219, 2017 U.S. Dist. LEXIS 121241 (S.D. Ohio Aug. 2, 2017)
(finding that the inadvertent production on two occasions of forty-three protected documents resulted in a waiver, and also holding that a claw-back agreement did not allow the producing party the right to retrieve the documents; noting as follows: "'The parties agreed that a formal court order under Fed. R. Evid. 502(d) was not necessary based on the scale of the case, but that the parties would agree among themselves as follows: 'If a producing party discovers that it has inadvertently produced a document that is privileged, the producing party will promptly notify the receiving party of the inadvertent production.' 'The receiving party will promptly destroy or return all copies of the inadvertently-produced document.' 'Inadvertent production of privileged documents does not operate as a waiver of that privilege.'"; "Rule 502, however, does not distinguish between 'negligent disclosure' and 'inadvertent disclosure.' Instead, the language of Rule 502 allows for only two options: there is either (1) intentional disclosure of privileged material, in which case Rule 502(a) defines the scope of the waiver or (2) an unintentional, inadvertent disclosure, in which Rule 502(b) guides whether waiver occurred."; "That a negligent disclosure is subsumed within the category of an inadvertent disclosure finds support in the relevant case law."; "Intuitively, this makes sense based upon the remaining language of Rule 502(b). The reasonableness of counsel's actions are considered expressly in 502(b)(2) and (b)(3), with no evidence that reasonableness should also be part of the (b)(1) analysis. . . . The Court thus concludes that classifying a disclosure is a binary choice: it is either intentional or inadvertent.")

Case Date Jurisdiction State Cite Checked
2017-08-02 Federal OH

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 Jurisdiction State Cite Checked
2017-04-13 Federal FL

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2101-01-01 State VA

Chapter: 27.1201
Case Name: Carmody v. Board of Trustees of the Universitiy of Illinois, No. 16-1335, 2018 U.S. App. LEXIS 16425 (7th Cir. App. June 19, 2018)
(analyzing the implications of the inadvertent disclosure of privileged documents under mysterious circumstances; "The district court also found that the defendants took reasonable steps to prevent the disclosure, focusing on the fact that just one privileged document slipped through. On this record, that finding was not clearly erroneous, even though the scale of this document production lay toward the modest end of the spectrum in modern discovery practice. Carmody acknowledges that some review took place to winnow the thousands of documents down to the several hundred produced and to avoid production of privileged documents. The fact that the Perry memorandum was referenced on the privilege logs reflects that winnowing and screening for privileged documents. The district court apparently inferred that the university's review procedures were reasonable, albeit imperfect, and credited the university's representations in its motion to compel that it took steps to review the documents for privilege. That view was not clearly erroneous. The university lawyer's oversight was surely a doozy, but the point of Rule 502(b) is to protect client's confidences from their lawyers' human errors like this one.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal

Chapter: 27.1201
Case Name: Raynor v. District of Columbia, Civ. A. No. 14-0750 (RC), 2018 U.S. Dist. LEXIS 23227 (D.D.C. Feb. 12, 2018)
(holding that a protective order did not apply to documents that had been inadvertently disclosed earlier, so the litigant could not rely on the protective order to claw-back the documents; "Even if the District's production of privileged information was inadvertent, it must still prove that it took reasonable steps to prevent disclosure. . . . But the District makes no effort to provide any detail or in any way explain the sorts of procedures or methodologies it followed in reviewing and producing documents. . . . Rather, the District argues only summarily, and without record support, that the small fraction of privileged documents inadvertently slipped through its process as part of large productions on tight deadlines. These assertions come only in the form of unsworn statements from counsel, and for whom it is unclear how much personal knowledge counsel may actually have on the issues of discovery here. This is simply not enough. Indeed, other Judges on this Court have admonished the District on exactly this point.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal DC

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2012-05-30 Federal NJ

Chapter: 27.1203
Case Name: Carmody v. Board of Trustees of the Universitiy of Illinois, No. 16-1335, 2018 U.S. App. LEXIS 16425 (7th Cir. App. June 19, 2018)
(analyzing the implications of the inadvertent disclosure of privileged documents under mysterious circumstances; "The district court also found that the defendants took reasonable steps to prevent the disclosure, focusing on the fact that just one privileged document slipped through. On this record, that finding was not clearly erroneous, even though the scale of this document production lay toward the modest end of the spectrum in modern discovery practice. Carmody acknowledges that some review took place to winnow the thousands of documents down to the several hundred produced and to avoid production of privileged documents. The fact that the Perry memorandum was referenced on the privilege logs reflects that winnowing and screening for privileged documents. The district court apparently inferred that the university's review procedures were reasonable, albeit imperfect, and credited the university's representations in its motion to compel that it took steps to review the documents for privilege. That view was not clearly erroneous. The university lawyer's oversight was surely a doozy, but the point of Rule 502(b) is to protect client's confidences from their lawyers' human errors like this one.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal

Chapter: 27.1203
Case Name: Audubon Society of Portland v. Zinke, Case No. 1:17-cv-00069-CL (lead), 2018 U.S. Dist. LEXIS 53570 (D. Ore. March 27, 2018)
(holding that the federal government's inadvertent disclosure resulted in a waiver, which triggered a subject matter waiver; "[I]n addition to disclosing comment TM25 on more than one occasion, Federal Defendants have failed to offer the specific facts and details necessary to sufficiently show they took reasonable steps to prevent disclosure in the first place. In cases that have found the privilege-holder took reasonable steps, the privilege-holder supported their contention with a specific description of their measures to protect against inadvertent disclosure and often buttressed their description with supporting affidavits or declarations.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal OR

Chapter: 27.1203
Case Name: Irth Solutions, LLC v. Windstream Communications LLC, Civ. A. 2:16-cv-219, 2017 U.S. Dist. LEXIS 121241 (S.D. Ohio Aug. 2, 2017)
(finding that the inadvertent production on two occasions of forty-three protected documents resulted in a waiver, and also holding that a claw-back agreement did not allow the producing party the right to retrieve the documents; "It is also worth noting that the first production was not the result of a technical error or third party-vendor mistake. Instead, attorneys reviewed a limited number of documents and made critical and reckless mistakes. This is not a case in which defense counsel was reviewing hundreds of thousands of documents and a few managed to evade review -- a situation that is likely and almost unavoidable in massive document reviews. Instead, this is a case in which only 1400 readable pages were produced initially, and of those pages, 146 pages -- or more than 10% of the entire production -- were missed."; "And then, Defendant produced the exact same documents again -- while simultaneously asking this Court to protect its privilege. Although defense counsel testified a 'spot check' was performed of the documents in the second production, once again, the facts do not add up. With twenty-nine documents (totaling 112 pages) needing redactions, even the most rudimentary spot check would have raised suspicions, as none of the documents in the second production contained any redactions at all.")

Case Date Jurisdiction State Cite Checked
2017-08-02 Federal OH

Chapter: 27.1203
Case Name: Lloyds of London Syndicate 2003 v. Fireman's Fund Ins. Co., Case No. 15-CV-2681-DDC-GLR, 2017 U.S. Dist. LEXIS 104130 (D. Kansas July 6, 2017)
(holding that the testifying expert's inadvertent disclosure of privileged documents to the plaintiff did not waive privilege protection under Rule 502; "Here, defense counsel affirmatively decided not to review Mr. Murphy's expert report. . . . Instead, defense counsel 'reasonably relied upon Mr. Murphy to cull out the protected documents' on his own because he had 'extensive experience in litigation in federal court' and defense counsel had briefed him about the matter. Id. Although counsel could have monitored Mr. Murphy's culling more closely, the court nonetheless finds counsel's actions reasonable."; "[D]efense counsel might have taken fuller precautions, but the court nonetheless concludes that counsel's actions did not waive work product protection. The court thus concludes that this first factor slightly weighs against waiver."; "[D]efense counsel notified plaintiff's counsel immediately when the inadvertent disclosure was revealed at the deposition."; "[T]his case involves only one inadvertently produced document. But, the court lacks information about the total number of documents defendant has produced during the entire litigation. Even without this information, this single inadvertent disclosure is minor."; "Defendant only disclosed the email to plaintiff's counsel. Indeed, plaintiff concedes that it has not shared the email with its expert or any other person. . . . Under these circumstances, no extensive disclosure has occurred."; "Also, plaintiff's counsel never questioned Mr. Murphy about the email after defense counsel timely notified them of the inadvertent disclosure.")

Case Date Jurisdiction State Cite Checked
2017-07-06 Federal KS

Chapter: 27.1203
Case Name: Viamedia, Inc. v. Comcast Corporation, Case No. 16-cv-5486, 2017 U.S. Dist. LEXIS 101852 (N.D. Ill. June 30, 2017)
(holding that an inadvertent disclosure to the Department of Justice did not waive privilege protection; "The Court also finds that Viamedia took reasonable steps to prevent disclosure. As described above, Viamedia put in place a comprehensive protocol for reviewing the many documents involved in this case. Other cases have found similar protocols -- including protocols relying more heavily on review by non-lawyers -- sufficient. . . . Viamedia also hired highly skilled lawyers to work on and oversee the production. While Defendants argue that Viamedia's efforts must not have been reasonable in light of its disclosure of privileged documents, the fact of disclosure alone cannot be enough to find insufficient steps to prevent disclosure. Otherwise, Rule 502 would become a nullity.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal IL

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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)
(holding that defendant did not have to review all documents for privilege before producing them, because the defendant could use an electronic search terms and arrange for a Clawback Order under Rule 502; "The Clawback Order states that 'in order to facilitate discovery and avoid delays, . . . [t]he producing party is specifically authorized to produce Protected Documents without a prior privilege review, and the producing party shall not be deemed to have waived any privilege or production in not undertaking such a review.'"; "Rule 502(d) provides that a clawback order such as the one in this case, which protects against the waiver of the attorney client privilege or work product protection, will also protect against waiver in 'any other federal or state proceeding.' Fed. R. Evid. 502(d). This amendment seeks to firmly establish the protection against wavier that a clawback order affords and facilitate discovery by reducing the need and costs of pre production privilege review."; " The Clawback Order includes the flowing language: 'The producing party is specifically authorized to produce Protected Documents without a prior privilege review, and the producing party shall not be deemed to have waived any privilege or protection in not undertaking such a review.'"; "[T]his approach would not be appropriate without the existence of the Protective Order and Clawback Order. The Orders protect any inadvertently produced privileged documents from waiver and any nonrelevant documents from use or disclosure outside this litigation. The magistrate judge's order does not require EQT to waive the privilege or the work product protection nor does it require the public disclosure of confidential documents because the Protective Order and the Clawback Order make this impossible." (footnote omitted); "To be sure, there is the potential for privileged or nonrelevant documents to slip through the cracks and be turned over to the other side. EQT argues that this is the real harm it faces if the magistrate's order is allowed to stand. This is an understandable concern. However, the risk of inadvertent disclosure is present in every case, and particularly present in those cases in which the document production is of significant size. Such inadvertent production can occur and does occur whether the documents are searched and reviewed electronically or by human eyes. See FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 479-480 (E.D. Va. 1991) ('The inadvertent production of a privileged document is a specter that haunts every document intensive case.'). EQT has not shown that the use of electronic searching would substantially increase the number of inadvertently produced privileged documents such that electronic searching is an unacceptable form of document review."; "EQT's position is that the only reasonable search for privileged and responsive documents is done by human beings on an individual document basis. As the bulk of trending case law and the recent amendments to the rules indicate, this is an untenable position. See Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003)"; "[T]he magistrate judge was correct in her conclusion that cost-shifting was unnecessary in this case because those costs could be mitigated by the use of electronic searching and production, together with the protections of the Protective and Clawback Orders. Further, EQT has never indicated that it would rather assume the costs of individualized human review and production of the emails. Therefore, it is reasonable to assume that, knowing that costs of review and production will not be shifted to the plaintiffs, EQT would not want to pay such costs and would prefer to rely on the production process outlined by the magistrate judge." (footnote omitted); "I find, however, that certain terms of the magistrate judge's order should be modified to better capture potentially privileged and work-product documents. The magistrate judge's order required the production of all emails sent or received between January 2005 and the present by eight named custodians and which are responsive to a list of search terms. The order further allowed EQT to withhold as potentially privileged any emails to or from a list of names representing inside and outside counsel. (footnote omitted) This privilege limitation will be expanded to include any emails containing any of the listed names within the body of the email. EQT will be allowed to withhold as potentially privileged any emails containing the terms 'privileged,' 'privileged and confidential,' 'attorney-client communication,' or 'attorney work product.' Such limitations should capture forwarded emails and other emails wherein privileged information is discussed. In addition, EQT will also be allowed to conduct preproduction individual document review of all emails sent or received on or after April 20, 2010, the day an earlier and related case, Adkins v. EQT Production Co., et al., No. 1:11CV00031, was filed, in order to ensure that privileged discussion of litigation strategy is not revealed.")

Case Date Jurisdiction State Cite Checked
2012-06-29 Federal VA

Chapter: 27.1203
Case Name: Jacob v. Duane Reade, Inc., 11 Civ. 0160 (JMO) (THK), 2012 U.S. Dist. LEXIS 25689 (S.D.N.Y. Feb. 28, 2012)
(finding that an inadvertent production resulted in a waiver, because the producing party had not acted promptly in seeking the inadvertently produced documents' return; finding that defendants had not acted unreasonably in relying on an outside vendor, who made the mistake; "Defendants hired an outside vendor to host the electronic data retrieved. They then retained a team of between ten and fifteen contract attorneys, working under the supervision of a Project Manager and litigation counsel, to review the EST and produce relevant documents prior to depositions of witnesses, and to prevent the disclosure or privileged or irrelevant documents. Defendants prepared lists of names of attorneys whose communications could be privileged, employed search filters, and quality control reviews. The reason that the email in question was not identified as privileged is that it was neither from nor to an attorney, no attorney was copied on the email, and only the first name of the attorney at the meeting was contained in the body of the email. Under the circumstances, the Court is unable to conclude that Defendants did not employ reasonable measures to prevent the disclosure of privileged material.")

Case Date Jurisdiction State Cite Checked
2012-02-28 Federal NY

Chapter: 27.1203
Case Name: King Pharms., Inc. v. Purdue Pharma L.P., Case No. 1:08CV00050, 2010 U.S. Dist. LEXIS 54407, at *4 (W.D. Va. June 2, 2010)
(holding that under Federal Rule of Evidence 502 a litigant's inadvertent disclosure did not result in a waiver; "Because it contains redactions, the document was obviously reviewed by litigation counsel before it was produced. However, Purdue asserts that the Four Pages should have been redacted in their entirety and the failure to do so was inadvertent.")

Case Date Jurisdiction State Cite Checked
2010-06-02 Federal VA B 4/13

Chapter: 27.1203
Case Name: The American Coal Sales Company v. Nova Scotia Power Inc., Case No. 2:06-cv-94, 2009 U.S. Dist. LEXIS 13550 (S.D. Ohio Feb. 23, 2009)
("The Order finds that Plaintiff took reasonable precautions to avoid inadvertent disclosures by having two attorneys review documents prior to production . . . That inadvertent production of one document out of over 2,000 documents produced does not weigh in favor of waiver . . . ; that the extent of the waiver was not great because the document had not worked its way into the fabric of the litigation."; "Defendant's objections to the Order's findings in the Nilavar analysis likewise are not well taken. Magistrate Judge Abel's factual finding that Plaintiff had taken reasonable precautions to avoid inadvertent disclosure is a reasonable finding based on the evidence that two attorneys reviewed all documents before they were produced. The fact that order, non-binding court opinions have found differently does not mean that Magistrate Judge Abel's finding is clearly erroneous. The same is true for the Order's findings related to the number of disclosures.")

Case Date Jurisdiction State Cite Checked
2009-02-23 Federal OH

Chapter: 27.1204
Case Name: Carmody v. Board of Trustees of the Universitiy of Illinois, No. 16-1335, 2018 U.S. App. LEXIS 16425 (7th Cir. App. June 19, 2018)
(analyzing the implications of the inadvertent disclosure of privileged documents under mysterious circumstances; "The University of Illinois fired plaintiff Kevin Carmody from his job as an information technology manager after printed copies of a professor's privileged emails suspiciously ended up in Carmody's home newspaper box."; "The university's lawyer represented to the district court that his firm logged the Perry memorandum as a 'legal memo' attached to one email and as an 'outline' attached to another email but did not otherwise identify it."; "The Perry memorandum bore the bold, all-caps heading: 'ATTORNEY-CLIENT COMMUNICATION PRIVILEGED AND CONFIDENTIAL.' Carmody and/or his lawyer photographed the document with a cell phone and stayed silent for about a year. The parties dispute whether Carmody flagged the document for copying."; "At Adesida's deposition -- about one year after the production -- Carmody's lawyer broke the silence and tried to surprise Adesida and the university with the document. Carmody's lawyer told the university's outside counsel that the document 'was one that we wanted you to copy' and tried to question Adesida about it. The university's outside counsel said that the document was 'inadvertently disclosed' and that the privilege had not been waived, instructed Adesida not to answer questions about the substance of the document, and requested that Carmody's lawyer destroy all copies of the Perry memorandum in his possession. One week after the deposition, the university's outside counsel wrote a letter to Carmody's lawyer again asking to 'claw-back' the Perry memorandum. Carmody's lawyer filed the Perry memorandum as an exhibit to Carmody's motion for summary judgment. After counsel were unable to agree on what to do, the university filed a prompt motion to compel plaintiff's counsel to return the Perry memorandum and to bar plaintiff from using it as evidence. The district court granted the motion.")

Case Date Jurisdiction State Cite Checked
2018-06-19 State IL

Chapter: 27.1204
Case Name: Hanson v. Wells Fargo Home Mortg., Case No. C13-0939JLR, 2013 U.S. Dist. LEXIS 149752, at *16 (W.D. Wash. Oct. 17, 2013)
(finding that the inadvertent disclosure of privileged communications did not result in a waiver; "Wells Fargo took reasonable steps to prevent disclosure. Indeed, Wells Fargo took steps in reviewing these documents that resulted in the documents being identified as privileged. Wells Fargo then labeled the documents as privileged . . . and attached a cover sheet, page 68, that said 'Backup documentation not to be submitted to court' . . . . Wells Fargo took steps to prevent disclosure, and those steps were largely successful. It was only through an administrative error that the documents were mistakenly filed.")

Case Date Jurisdiction State Cite Checked
2013-10-17 Federal WA B 5/14

Chapter: 27.1204
Case Name: Jo Ann Howard & Assocs., P.C. v. Cassity, Case No. 4:09CV-01252 ERW, 2013 U.S. Dist. LEXIS 101135, at *22 (E.D. Miss. July 19, 2013)
(finding that an inadvertent production of a document resulted in a waiver; "The Court further finds that Defendants failed to take reasonable precautions to prevent inadvertent disclosure, in view of the extent of document production. The Narrative Timeline bears no label or other indication of its alleged privileged status that would likely alert anyone that the document might be protected.")

Case Date Jurisdiction State Cite Checked
2013-07-19 Federal MS B 4/14

Chapter: 27.1204
Case Name: Carlson v. Carmichael, Civ. A. No. 10-3579, 2013 U.S. Dist. LEXIS 101088, at *7, *8, *9-10 (E.D. Pa. July 19, 2013)
("[O]ther relevant factors disfavor finding that the U.S. Attorney's Office took reasonable precautions here. In particular, the Defendants produced fewer that 600 pages of documents in February 2013, and counsel had three months to review these documents before producing them."; "Presumably, Mr. Degnan (asst. U.S. Attorney) never would have produced the notes if any steps had been taken to guard against their disclosure, such as marking them as privileged, identifying the author, ensuring that they were removed from the folder entitled 'Documents from Carmichael,' or in some other way alerting for the need to exercise caution.";"[H]is review was rendered ineffective before it even began because of the actions of others in his office, actions which left him without any reasonable chance of discovering that the notes were privileged. While it is true that Mr. Degnan could have chosen to try to ascertain the provenance of every document in the case file when he took the case over, he did not do so. . . . [T]he arrival of replacement counsel cannot afford a party a 'Mulligan' or the unfettered benefit of a reset button (for those who prefer an electronics metaphor) with respect to analyzing whether the party, as opposed to a specific lawyer, may claim the privileges' protections. To hold otherwise would, bizarrely, reward the turnstile staffing of litigation matters than can hardly be something to be encouraged for the fair and expeditious handling of cases." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-07-19 Federal PA B 5/14

Chapter: 27.1204
Case Name: Inhalation Plastics, Inc. v. Medex Cardio Pulmonary, Inc., Civ. A. No. 2:07 CV 116, 2012 U.S. Dist. LEXIS 121830, at *12-13 (S.D. Ohio Aug. 28, 2012)
("The number of privileged documents that were disclosed was significant, those documents were not marked as confidential and no privilege log was provided with the disclosed documents. More importantly, the documents appear to be relevant to IPI's claims and IPI has attempted to use them in depositions. These considerations all suggest that the magnitude of the disclosure was high.")

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

Chapter: 27.1204
Case Name: Francisco v. Verizon S., Inc., 756 F. Supp. 2d 705, 719 (E.D. Va. 2010)
("Verizon did not take sufficient precautions to prevent the disclosure. The document itself was not marked with any indicia or privileged, such as a notation that the notes reflected a conversation with counsel.")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal VA B 8/13

Chapter: 27.1204
Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 552, 553 (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; finding that the doctor failed to take reasonable precautions to protect the letter's privilege; "None of these factors is independently dispositive, and the court must also consider any other factors arising from the posture of the case at bar that have a material bearing on the reasonableness issues. . . . Upon consideration of the record as a whole, we conclude that the doctors failed to take reasonable measures to ensure and maintain the confidentiality of the letter."; "The notebook was not marked privileged or confidential, nor was the letter itself marked privileged or confidential. The number of documents to be reviewed before release was not extensive. There were no time constraints in responding to the discovery request that would have precluded a review of what was produced. Neither the doctors nor their counsel conducted a privilege review of the documents gathered by Smart Copy. In fact, there was no evidence presented regarding any procedure for reviewing documents before they were copied by Smart Copy. Dr. Moore could have insisted upon additional review, such as after the documents were copied by Smart Copy and prior to their production. See Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 116 F.R.D. 46, 51 (M.D. N.C. 1987). When a party utilizes an independent copy service like Smart Copy for purposes of document production, it is especially important to clearly mark documents intended to remain confidential to avoid commingling such documents with documents that are properly subject to discovery. The doctors did not establish that they took sufficient efforts to supervise the Smart Copy employees or to prevent intermingling of the letter with unprivileged, non confidential documents. We therefore conclude that the doctors failed to take reasonable precautions to prevent an inadvertent disclosure of the letter.")

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

Chapter: 27.1205
Case Name: Clark Cnty. v. Jacobs Facilities, Inc., Case No. 2:10 cv 00194 LRH PAL, 2012 U.S. Dist. LEXIS 141651, at *29, *36-37 (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); "Considering the scope of discovery, the fact that the document was identified on Jacobs' privileged document log and fifty-seven copies withheld also persuades the court that the disclosure was inadvertent."; ultimately holding that the inadvertent disclosure of privileged documents did not result in a waiver)

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

Chapter: 27.1206
Case Name: Irth Solutions, LLC v. Windstream Communications LLC, Civ. A. 2:16-cv-219, 2017 U.S. Dist. LEXIS 121241 (S.D. Ohio Aug. 2, 2017)
(finding that the inadvertent production on two occasions of forty-three protected documents resulted in a waiver, and also holding that a claw-back agreement did not allow the producing party the right to retrieve the documents; "It is also worth noting that the first production was not the result of a technical error or third party-vendor mistake. Instead, attorneys reviewed a limited number of documents and made critical and reckless mistakes. This is not a case in which defense counsel was reviewing hundreds of thousands of documents and a few managed to evade review -- a situation that is likely and almost unavoidable in massive document reviews. Instead, this is a case in which only 1400 readable pages were produced initially, and of those pages, 146 pages -- or more than 10% of the entire production -- were missed."; "And then, Defendant produced the exact same documents again -- while simultaneously asking this Court to protect its privilege. Although defense counsel testified a 'spot check' was performed of the documents in the second production, once again, the facts do not add up. With twenty-nine documents (totaling 112 pages) needing redactions, even the most rudimentary spot check would have raised suspicions, as none of the documents in the second production contained any redactions at all.")

Case Date Jurisdiction State Cite Checked
2017-08-02 Federal OH

Chapter: 27.1206
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 Jurisdiction State Cite Checked
2015-04-14 Federal WV
Comment:

key case


Chapter: 27.1206
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; "Although the length of time Plaintiffs had possession of the Logel document weighs somewhat in favor of waiver, there was no reason for Ford to suspect that the document had been produced by its vendor against the express instructions of Ford's litigation counsel until the document was discovered during deposition preparation. Plaintiffs' contention that Ford's counsel should have suspected disclosure when Ford received Plaintiffs' request for the deposition of Said Deep presumes a duty on Ford's counsel to immediately collect Mr. Deep's documents simply because his deposition was requested, even though it was not yet scheduled. That presumption is not realistic given the demands and time constraints of large-scale litigation, as well as the mutable demands made by parties during the discovery process. For these reasons, the undersigned finds this factor to be neutral.")

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

Chapter: 27.1206
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 Jurisdiction State Cite Checked
2012-05-30 Federal NJ

Chapter: 27.1206
Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 552, 553 (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; finding that the doctor failed to take reasonable precautions to protect the letter's privilege; "None of these factors is independently dispositive, and the court must also consider any other factors arising from the posture of the case at bar that have a material bearing on the reasonableness issues. . . . Upon consideration of the record as a whole, we conclude that the doctors failed to take reasonable measures to ensure and maintain the confidentiality of the letter."; "The notebook was not marked privileged or confidential, nor was the letter itself marked privileged or confidential. The number of documents to be reviewed before release was not extensive. There were no time constraints in responding to the discovery request that would have precluded a review of what was produced. Neither the doctors nor their counsel conducted a privilege review of the documents gathered by Smart Copy. In fact, there was no evidence presented regarding any procedure for reviewing documents before they were copied by Smart Copy. Dr. Moore could have insisted upon additional review, such as after the documents were copied by Smart Copy and prior to their production. See Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 116 F.R.D. 46, 51 (M.D. N.C. 1987). When a party utilizes an independent copy service like Smart Copy for purposes of document production, it is especially important to clearly mark documents intended to remain confidential to avoid commingling such documents with documents that are properly subject to discovery. The doctors did not establish that they took sufficient efforts to supervise the Smart Copy employees or to prevent intermingling of the letter with unprivileged, non confidential documents. We therefore conclude that the doctors failed to take reasonable precautions to prevent an inadvertent disclosure of the letter.")

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

Chapter: 27.1206
Case Name: Lazar v. Mauney, Civ. A. No. 2:99-CV-0062-WCO, 2000 U.S. Dist. LEXIS 4473 (N.D. Ga. March 24, 2000)
(granting a motion to strike defendant's use of an inadvertently produced document, because there had been no waiver; "On October 7, 1999, Ms. Anderson became aware that part of the documents had to be sent to an off-site copy service because the on-site copy service was consumed with a rush copying job. Delivery to defense counsel was delayed until Friday, October 8, 1999. When she received both sets of materials, Ms. Anderson simultaneously reviewed both sets, checking for the unintentional inclusion of privileged material and confirming that the two sets were identical. Nine-hundred and ninety-six pages were then delivered to defense counsel with a cover letter stating that the privilege log would arrive shortly under separate cover."; "The following Monday, October 11, 1999, while filing the duplicate copies of produced documents, Ms. Anderson discovered that three pages of attorney-client privileged correspondence, two of which constituted the letter, had inadvertently been improperly copied and delivered to defense counsel. Ms. Anderson notified defense counsel of the disclosure by letter which was faxed and hand delivered that day. The letter stated that three pages of attorney-client privileged correspondence were 'inadvertently produced' and that 'plaintiff does not waive the privilege as to the documents, or any privileged documents, and requests their immediate return.'. . . Anderson also left a voicemail with both defense attorneys of record, Thomas Bart Gary and Jefferson M. Allen."; "[T]he court finds that plaintiff did not waive the attorney-client privilege in regard to the three pages inadvertently disclosed by his counsel. The inadvertent disclosure of plaintiff's counsel does not waive the plaintiff's attorney-client privilege because the privilege can be waived only by the intentional relinquishment of the privilege by the client.")

Case Date Jurisdiction State Cite Checked
2000-03-24 Federal GA

Chapter: 27.1207
Case Name: Carmody v. Board of Trustees of the Universitiy of Illinois, No. 16-1335, 2018 U.S. App. LEXIS 16425 (7th Cir. App. June 19, 2018)
(analyzing the implications of the inadvertent disclosure of privileged documents under mysterious circumstances; "The district court also found that the university, as holder of the privilege, took prompt and reasonable steps to rectify the disclosure. The university's outside counsel immediately tried to 'claw-back' the Perry memorandum upon opposing counsel's attempt to use it. At Adesida's deposition, the university's outside counsel immediately claimed inadvertence, instructed Adesida not to answer questions about the document, and requested that Carmody's lawyer destroy all copies of the document in his possession. The lawyer followed up with a letter and, upon reaching an impasse with Carmody's lawyer, filed the appropriate motion to compel return of the document and to bar its use as evidence. An element of basic fairness here also weighs against Carmody because of his lawyer's tactics. He or his lawyer surreptitiously photographed the document, stayed silent for a year, tried to surprise the university with the document at a deposition, and then made the document public by attaching it as an exhibit to a motion for summary judgment after defense counsel had demanded its return but before the court could resolve the issue.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal

Chapter: 27.1207
Case Name: Audubon Society of Portland v. Zinke, Case No. 1:17-cv-00069-CL (lead), 2018 U.S. Dist. LEXIS 53570 (D. Ore. March 27, 2018)
(holding that the federal government's inadvertent disclosure resulted in a waiver, which triggered a subject matter waiver; "Here, Federal Defendants note that the sheer size of the administrative record -- over 120,000 pages -- caused the inadvertent disclosure of the comment at issue, 'despite [their] best efforts[.]'. . . . As stated, the number of documents is a factor the court must consider; in fact, Rule 502's Advisory Committee Notes expressly say courts should take into account 'the number of documents to be reviewed.' And the Court is sympathetic to the sheer size of the record in this case; however, the fact that Federal Defendants disclosed the comment at issue in three separate iterations of the record and in a FOIA request lessens the weight given to this factor.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal OR

Chapter: 27.1207
Case Name: United States v. Brewington, Crim. Case No. 15-cr-00073-PAB, 2018 U.S. Dist. LEXIS 30425 (D. Colo. Feb. 26, 2018)
(holding that an inadvertent disclosure resulted in a waiver; explaining that the documents' owner did not take reasonable precautions on the owner's own, but that the government did take reasonable precautions and collected the documents and used a "filter team" to review the documents; "Applying Fed. R. Evid. 502(b) to the above findings, the Court determines that Mr. Elrod has waived his privilege with respect to the documents that he downloaded himself, but not with respect to those that were downloaded by the government's IT employee. Therefore, the Court will order the production of those documents that Mr. Elrod downloaded himself on the grounds that he has waived his attorney-client privilege."; "However, the Court does not agree that Mr. Elrod took reasonable precautions with respect to the emails that he downloaded. He testified that, in downloading emails himself, he searched for both email addresses and names of individuals relevant to the investigation. Neither he nor the government provided any evidence that such searches were restricted to the emails' address fields. . . . Such a search would have located privileged emails referring to any of the searched names, such as those documents that were ultimately disclosed. Further, there is no indication that Mr. Elrod, Mr. Koch, or the government screened the emails that Mr. Elrod downloaded in any way before they were produced.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal CO

Chapter: 27.1207
Case Name: Raynor v. District of Columbia, Civ. A. No. 14-0750 (RC), 2018 U.S. Dist. LEXIS 23227 (D.D.C. Feb. 12, 2018)
(holding that a protective order did not apply to documents that had been inadvertently disclosed earlier, so the litigant could not rely on the protective order to claw-back the documents; "Even if the District's production of privileged information was inadvertent, it must still prove that it took reasonable steps to prevent disclosure. . . . But the District makes no effort to provide any detail or in any way explain the sorts of procedures or methodologies it followed in reviewing and producing documents. . . . Rather, the District argues only summarily, and without record support, that the small fraction of privileged documents inadvertently slipped through its process as part of large productions on tight deadlines. These assertions come only in the form of unsworn statements from counsel, and for whom it is unclear how much personal knowledge counsel may actually have on the issues of discovery here. This is simply not enough. Indeed, other Judges on this Court have admonished the District on exactly this point.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal DC

Chapter: 27.1207
Case Name: Irth Solutions, LLC v. Windstream Communications LLC, Civ. A. 2:16-cv-219, 2017 U.S. Dist. LEXIS 121241 (S.D. Ohio Aug. 2, 2017)
(finding that the inadvertent production on two occasions of forty-three protected documents resulted in a waiver, and also holding that a claw-back agreement did not allow the producing party the right to retrieve the documents; "[T]he privileged documents represent more than 10% of the documents produced; only 2200 total pages were produced and Defendant had months to produce the first production; and the review process 'mistake' was not the result of a technical error or mistake borne from hours and hours of review for this case. Accordingly, the Court finds under the second approach, Defendant's production was reckless. This recklessness leads the Court to hold that privilege has in fact been waived.")

Case Date Jurisdiction State Cite Checked
2017-08-02 Federal OH

Chapter: 27.1207
Case Name: Viamedia, Inc. v. Comcast Corporation, Case No. 16-cv-5486, 2017 U.S. Dist. LEXIS 101852 (N.D. Ill. June 30, 2017)
(holding that an inadvertent disclosure to the Department of Justice did not waive privilege protection; "[T]he Court has reviewed the documents in question in camera and many of them are fairly mundane emails that would not scream out as obviously privileged and do not appear to advance any potential claim against Comcast. This further suggests that Viamedia's disclosure was inadvertent.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal IL

Chapter: 27.1207
Case Name: Viamedia, Inc. v. Comcast Corporation, Case No. 16-cv-5486, 2017 U.S. Dist. LEXIS 101852 (N.D. Ill. June 30, 2017)
(holding that an inadvertent disclosure to the Department of Justice did not waive privilege protection; "Viamedia claimed privilege over thousands of documents during its production to the DOJ, suggesting that it did not intend to produce all privileged materials. This is not a case where a party initially produced all documents without claiming privilege over any of them only to subsequently claim privilege.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal IL

Chapter: 27.1207
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; "While Plaintiffs contend that Defendant should have been aware of the potential for additional inadvertent disclosures when Plaintiffs previously notified Defendant on February 4, 2016 that a document had been inadvertently disclosed . . . the Court is unwilling to find that a single inadvertent disclosure among a much larger document production necessarily alerted Defendant that there were greater or systemic issues with her document production.")

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

Chapter: 27.1207
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 Jurisdiction State Cite Checked
2017-04-13 Federal FL

Chapter: 27.1207
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; "'Plaintiffs claim that Ford has not carried its burden to establish that production of the Logel document was inadvertent given that Ford has not provided any evidence of the processing error that resulted in the document's disclosure, other than an affidavit from Ms. Schebel stating than an error occurred. The undersigned does not find this argument persuasive. In addition to the affidavit of Ms. Schebel, the Court notes that the Logel document was included on Ford's privilege log. Moreover, according to an affidavit from Mr. Walker, co-counsel for Ford, as soon as he realized that the Logel document was included in a set of produced documents, he contacted Ms. Schebel. This call was made on a Sunday evening. The following day, Ms. Schebel issued written clawback requests. This evidence, taken as a whole, corroborates Ford's representation to the Court that disclosure of the Logel document was inadvertent.")

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

key case


Chapter: 27.1207
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 Jurisdiction State Cite Checked
2015-04-08 Federal FL

Chapter: 27.1207
Case Name: Northrop Grumman Sys. Corp. v. United States, No. 12-286C, 2015 U.S. Claims 235 (Fed. Cl. March 9, 2015)
(finding that the government's inadvertent production did not waive privilege; "As counsel for the government explained, two mistakes were made during the second effort to identify privileged documents. First, counsel was under the impression that the third party vendor was searching, not just for attorney names, but for terms such as 'privileged' or 'work product.' In fact, the vendor did not do so. Second, counsel was under the impression that the 'to and from' attorney search among emails included such addresses anywhere in the chain of emails included in the document, not just the last email. Again, that turns out to have been an erroneous assumption."; "Plainly there was too much reliance on the third party vendor. Greater care and oversight should have been exercised by counsel. This conduct was not so careless, however, as to warrant a conclusion that it was tantamount to a waiver, particularly in light of the parties' reliance on the protections of the claw back proviso [sic].")

Case Date Jurisdiction State Cite Checked
2015-03-09 Federal Other

Chapter: 27.1207
Case Name: Cormack v. United States, No. 13-232C, 2014 U.S. Claims LEXIS 664 (Fed. Cl. July 18, 2014)
("During the course of discovery for this case, Systems has produced more than one million documents. . . . The scope of the discovery, the use of advanced software to screen for privilege, and the affidavit describing the numerous steps taken by Systems should have constituted reasonable steps to prevent disclosure."; "Considering the specific circumstances of this case, the disclosure of Exhibit 3 can properly be considered inadvertent, albeit mistaken, and the court finds that counsel for Northrop Grumman Systems took reasonable steps to prevent its disclosure.")

Case Date Jurisdiction State Cite Checked
2014-07-18 Federal Other

Chapter: 27.1207
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 Jurisdiction State Cite Checked
2014-04-25 Federal IA

Chapter: 27.1207
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; "The nature of the documents at issue also weigh in favor of a finding that the error occurred despite reasonable precautions. As noted above, the Communication was inconspicuously located among various non-privileged email messages. It begins halfway down one page, with a non-privileged email message located at the top of that page. There is no horizontal line or other obvious indicator that separates the privileged message from the non-privileged one above it. Moreover, the message at issue turned out to be the only privileged communication contained within a stack of hundreds of pages of materials. While the sheer number of pages is hardly excessive, the fact that no other privileged communications were included may have contributed to the error. If other pages also contained privileged information, Mr. Phillips would have (or at least should have) been especially alert to the risk of inadvertent disclosure. The fact that only one privileged communication was contained in several hundred pages of documents makes it more understandable it was overlooked.")

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

Chapter: 27.1207
Case Name: Surfcast, Inc. v. Microsoft Corp., No. 2:12-cv-333-JAW, 2013 U.S. Dist. LEXIS 111417, at *13 (D. Me. Aug. 7, 2013)
(holding that the privilege can protect emails sent to a lawyer directly, with a copy to a nonlawyer; "[T]he fact that Exhibit 24 was potentially privileged was evident from the face of the document itself, and, combined with the fact that the disclosing party allowed it to be used at a deposition without objection, resulted in a waiver of the privilege.")

Case Date Jurisdiction State Cite Checked
2013-08-07 Federal ME B 4/14

Chapter: 27.1207
Case Name: Jo Ann Howard & Assocs., P.C. v. Cassity, Case No. 4:09CV-01252 ERW, 2013 U.S. Dist. LEXIS 101135, at *20-21 (E.D. Miss. July 19, 2013)
(finding that an inadvertent of production of a document resulted in a waiver; "Defendants intentionally produced the document twice with their voluntary, initial disclosures, naming the document 'Narrative Timeline.'")

Case Date Jurisdiction State Cite Checked
2013-07-19 Federal MS B 4/14

Chapter: 27.1207
Case Name: Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Case No. 2:07-cv-116, 2013 U.S. Dist. LEXIS 34943, at *17 (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; "The Magistrate Judge essentially found that Medex CP's failure to produce a privilege log discredited its attempt to establish that it took reasonable precautions to prevent an inadvertent disclosure. Medex CP fails to show that this finding is clearly erroneous or contrary to law.")

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

Chapter: 27.1207
Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 116 (Fed. Cl. 2013)
("Defendant's production of four copies of the partially redacted version of the Memorandum to plaintiff after examining the Memorandum for privileged information and applying only some redactions to the document suggests that defendant took inadequate precautions against disclosure.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal Other B 3/14

Chapter: 27.1207
Case Name: Inhalation Plastics, Inc. v. Medex Cardio Pulmonary, Inc., Civ. A. No. 2:07 CV 116, 2012 U.S. Dist. LEXIS 121830, at *15 (S.D. Ohio Aug. 28, 2012)
("The interests of justice weigh in favor of IPI. Despite a relatively small production of documents and the relatively large number of claimed inadvertent disclosures, Medex has not specified a single particular document that it now claims is privileged, it has not produced the privilege log required by Rule 26(b)(5)(A) and it has not complied with Rule 26(b)(5)(B).")

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

Chapter: 27.1207
Case Name: Inhalation Plastics, Inc. v. Medex Cardio Pulmonary, Inc., Civ. A. No. 2:07 CV 116, 2012 U.S. Dist. LEXIS 121830, at *11-12 (S.D. Ohio Aug. 28, 2012)
("Medex does not specify, however, who reviewed the production, what steps were taken to review the documents for privilege or whether the production was different in form from prior productions. . . . Medex has also failed to adequately address the alleged inconsistencies between the May 30 production and all prior productions. Under these circumstances, the Court concludes that Medex has failed to establish that it took reasonable precautions to prevent an inadvertent disclosure.")

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

Chapter: 27.1207
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)
(holding that defendant did not have to review all documents for privilege before producing them, because the defendant could use an electronic search terms and arrange for a Clawback Order under Rule 502; "The Clawback Order states that 'in order to facilitate discovery and avoid delays, . . . [t]he producing party is specifically authorized to produce Protected Documents without a prior privilege review, and the producing party shall not be deemed to have waived any privilege or production in not undertaking such a review.'"; "Rule 502(d) provides that a clawback order such as the one in this case, which protects against the waiver of the attorney client privilege or work product protection, will also protect against waiver in 'any other federal or state proceeding.' Fed. R. Evid. 502(d). This amendment seeks to firmly establish the protection against wavier that a clawback order affords and facilitate discovery by reducing the need and costs of pre production privilege review."; " The Clawback Order includes the flowing language: 'The producing party is specifically authorized to produce Protected Documents without a prior privilege review, and the producing party shall not be deemed to have waived any privilege or protection in not undertaking such a review.'"; "[T]his approach would not be appropriate without the existence of the Protective Order and Clawback Order. The Orders protect any inadvertently produced privileged documents from waiver and any nonrelevant documents from use or disclosure outside this litigation. The magistrate judge's order does not require EQT to waive the privilege or the work product protection nor does it require the public disclosure of confidential documents because the Protective Order and the Clawback Order make this impossible." (footnote omitted); "To be sure, there is the potential for privileged or nonrelevant documents to slip through the cracks and be turned over to the other side. EQT argues that this is the real harm it faces if the magistrate's order is allowed to stand. This is an understandable concern. However, the risk of inadvertent disclosure is present in every case, and particularly present in those cases in which the document production is of significant size. Such inadvertent production can occur and does occur whether the documents are searched and reviewed electronically or by human eyes. See FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 479-480 (E.D. Va. 1991) ('The inadvertent production of a privileged document is a specter that haunts every document intensive case.'). EQT has not shown that the use of electronic searching would substantially increase the number of inadvertently produced privileged documents such that electronic searching is an unacceptable form of document review."; "EQT's position is that the only reasonable search for privileged and responsive documents is done by human beings on an individual document basis. As the bulk of trending case law and the recent amendments to the rules indicate, this is an untenable position. See Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003)"; "[T]he magistrate judge was correct in her conclusion that cost-shifting was unnecessary in this case because those costs could be mitigated by the use of electronic searching and production, together with the protections of the Protective and Clawback Orders. Further, EQT has never indicated that it would rather assume the costs of individualized human review and production of the emails. Therefore, it is reasonable to assume that, knowing that costs of review and production will not be shifted to the plaintiffs, EQT would not want to pay such costs and would prefer to rely on the production process outlined by the magistrate judge." (footnote omitted); "I find, however, that certain terms of the magistrate judge's order should be modified to better capture potentially privileged and work-product documents. The magistrate judge's order required the production of all emails sent or received between January 2005 and the present by eight named custodians and which are responsive to a list of search terms. The order further allowed EQT to withhold as potentially privileged any emails to or from a list of names representing inside and outside counsel. (footnote omitted) This privilege limitation will be expanded to include any emails containing any of the listed names within the body of the email. EQT will be allowed to withhold as potentially privileged any emails containing the terms 'privileged,' 'privileged and confidential,' 'attorney-client communication,' or 'attorney work product.' Such limitations should capture forwarded emails and other emails wherein privileged information is discussed. In addition, EQT will also be allowed to conduct preproduction individual document review of all emails sent or received on or after April 20, 2010, the day an earlier and related case, Adkins v. EQT Production Co., et al., No. 1:11CV00031, was filed, in order to ensure that privileged discussion of litigation strategy is not revealed.")

Case Date Jurisdiction State Cite Checked
2012-06-29 Federal VA

Chapter: 27.1207
Case Name: Jacob v. Duane Reade, Inc., 11 Civ. 0160 (JMO) (THK), 2012 U.S. Dist. LEXIS 25689 (S.D.N.Y. Feb. 28, 2012)
(finding that an inadvertent production resulted in a waiver, because the producing party had not acted promptly in seeking the inadvertently produced documents' return; finding that defendants had not acted unreasonably in relying on an outside vendor, who made the mistake; "Defendants hired an outside vendor to host the electronic data retrieved. They then retained a team of between ten and fifteen contract attorneys, working under the supervision of a Project Manager and litigation counsel, to review the EST and produce relevant documents prior to depositions of witnesses, and to prevent the disclosure or privileged or irrelevant documents. Defendants prepared lists of names of attorneys whose communications could be privileged, employed search filters, and quality control reviews. The reason that the email in question was not identified as privileged is that it was neither from nor to an attorney, no attorney was copied on the email, and only the first name of the attorney at the meeting was contained in the body of the email. Under the circumstances, the Court is unable to conclude that Defendants did not employ reasonable measures to prevent the disclosure of privileged material.")

Case Date Jurisdiction State Cite Checked
2012-02-28 Federal NY

Chapter: 27.1207
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 scope of discovery; "The doctors do not contend that the discovery in this case was extensive or involved a massive exchange of documents. Also lacking was any evidence of time constraints or of any other factor impeding the doctors' ability to monitor the documents being produced. Because the discovery was not expedited or extensive, the doctors are given less leeway regarding their precautions to ensure the letter was not disclosed.")

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

Chapter: 27.1207
Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 552, 553 (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; finding that the doctor failed to take reasonable precautions to protect the letter's privilege; "None of these factors is independently dispositive, and the court must also consider any other factors arising from the posture of the case at bar that have a material bearing on the reasonableness issues. . . . Upon consideration of the record as a whole, we conclude that the doctors failed to take reasonable measures to ensure and maintain the confidentiality of the letter."; "The notebook was not marked privileged or confidential, nor was the letter itself marked privileged or confidential. The number of documents to be reviewed before release was not extensive. There were no time constraints in responding to the discovery request that would have precluded a review of what was produced. Neither the doctors nor their counsel conducted a privilege review of the documents gathered by Smart Copy. In fact, there was no evidence presented regarding any procedure for reviewing documents before they were copied by Smart Copy. Dr. Moore could have insisted upon additional review, such as after the documents were copied by Smart Copy and prior to their production. See Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 116 F.R.D. 46, 51 (M.D. N.C. 1987). When a party utilizes an independent copy service like Smart Copy for purposes of document production, it is especially important to clearly mark documents intended to remain confidential to avoid commingling such documents with documents that are properly subject to discovery. The doctors did not establish that they took sufficient efforts to supervise the Smart Copy employees or to prevent intermingling of the letter with unprivileged, non confidential documents. We therefore conclude that the doctors failed to take reasonable precautions to prevent an inadvertent disclosure of the letter.")

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

Chapter: 27.1207
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 Jurisdiction State Cite Checked
2009-11-23 Federal ID

Chapter: 27.1207
Case Name: Heriot v. Byrne, Case No. 08 C 2272, 2009 U.S. Dist. LEXIS 22552 (N.D. Ill. March 20, 2009)
(finding that an inadvertent production due to an outside vendor's error did not waive the privilege; "[A]lthough Plaintiffs disclosed 13 percent of their privileged documents, the weight of the factors tips the balance in favor of inadvertent disclosure. First, Plaintiffs used reasonable procedures to review the Sequestered Documents and, after this review, the Vendor erroneously disclosed privileged documents. Plaintiffs had no reason to suspect the Vendor would inadvertently produce documents that Plaintiffs had already designated as privileged. Furthermore, there were no signs of indications after production that the Vendor made any inadvertent disclosure. Finally, upon learning of the disclosure, Plaintiffs immediately contacted Defendants, claimed attorney-client privilege, identified the privileged documents, and requested their destruction.")

Case Date Jurisdiction State Cite Checked
2009-03-20 Federal IL

Chapter: 27.1207
Case Name: FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479 (E.D. Va. 1991)
("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.")

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

Chapter: 27.1208
Case Name: Audubon Society of Portland v. Zinke, Case No. 1:17-cv-00069-CL (lead), 2018 U.S. Dist. LEXIS 53570 (D. Ore. March 27, 2018)
(holding that the federal government's inadvertent disclosure resulted in a waiver, which triggered a subject matter waiver; "[I]n addition to disclosing comment TM25 on more than one occasion, Federal Defendants have failed to offer the specific facts and details necessary to sufficiently show they took reasonable steps to prevent disclosure in the first place. In cases that have found the privilege-holder took reasonable steps, the privilege-holder supported their contention with a specific description of their measures to protect against inadvertent disclosure and often buttressed their description with supporting affidavits or declarations.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal OR

Chapter: 27.1208
Case Name: United States v. Brewington, Crim. Case No. 15-cr-00073-PAB, 2018 U.S. Dist. LEXIS 30425 (D. Colo. Feb. 26, 2018)
(holding that an inadvertent disclosure resulted in a waiver; explaining that the documents' owner did not take reasonable precautions on the owner's own, but that the government did take reasonable precautions and collected the documents and used a "filter team" to review the documents; "Applying Fed. R. Evid. 502(b) to the above findings, the Court determines that Mr. Elrod has waived his privilege with respect to the documents that he downloaded himself, but not with respect to those that were downloaded by the government's IT employee. Therefore, the Court will order the production of those documents that Mr. Elrod downloaded himself on the grounds that he has waived his attorney-client privilege."; "However, the Court does not agree that Mr. Elrod took reasonable precautions with respect to the emails that he downloaded. He testified that, in downloading emails himself, he searched for both email addresses and names of individuals relevant to the investigation. Neither he nor the government provided any evidence that such searches were restricted to the emails' address fields. . . . Such a search would have located privileged emails referring to any of the searched names, such as those documents that were ultimately disclosed. Further, there is no indication that Mr. Elrod, Mr. Koch, or the government screened the emails that Mr. Elrod downloaded in any way before they were produced.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal CO

Chapter: 27.1208
Case Name: United States v. Brewington, Crim. Case No. 15-cr-00073-PAB, 2018 U.S. Dist. LEXIS 30425 (D. Colo. Feb. 26, 2018)
(holding that an inadvertent disclosure resulted in a waiver; explaining that the documents' owner did not take reasonable precautions on the owner's own, but that the government did take reasonable precautions and collected the documents and used a "filter team" to review the documents; "Applying Fed. R. Evid. 502(b) to the above findings, the Court determines that Mr. Elrod has waived his privilege with respect to the documents that he downloaded himself, but not with respect to those that were downloaded by the government's IT employee. Therefore, the Court will order the production of those documents that Mr. Elrod downloaded himself on the grounds that he has waived his attorney-client privilege."; "In determining whether a party 'took reasonable steps to prevent disclosure,' Fed. R. Evid. 502(b)(2), courts have looked to the processes put in place to prevent such production and the implementation of those processes.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal CO

Chapter: 27.1208
Case Name: Raynor v. District of Columbia, Civ. A. No. 14-0750 (RC), 2018 U.S. Dist. LEXIS 23227 (D.D.C. Feb. 12, 2018)
(holding that a protective order did not apply to documents that had been inadvertently disclosed earlier, so the litigant could not rely on the protective order to claw-back the documents; "Even if the District's production of privileged information was inadvertent, it must still prove that it took reasonable steps to prevent disclosure. . . . But the District makes no effort to provide any detail or in any way explain the sorts of procedures or methodologies it followed in reviewing and producing documents. . . . Rather, the District argues only summarily, and without record support, that the small fraction of privileged documents inadvertently slipped through its process as part of large productions on tight deadlines. These assertions come only in the form of unsworn statements from counsel, and for whom it is unclear how much personal knowledge counsel may actually have on the issues of discovery here. This is simply not enough. Indeed, other Judges on this Court have admonished the District on exactly this point.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal DC

Chapter: 27.1208
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; "The Court finds the manner in which the documents were produced weighs against a finding that the government took reasonable precautions against inadvertent disclosure. The documents for which the government now claims privilege were Bates-labeled and intermingled with non-privileged documents. As a result, there is no explanation for the government's subsequent production of documents sequentially Bates-labeled 00001 through 05784 -- without exception or omission -- that is consistent with its claims of reasonable effort to avoid inadvertent disclosure. The government must or should have realized that it was producing all of the ATF-STL documents, including those it now asserts are privileged."; "The government does not provide any information as to who conducted the document review, in what manner documents were 'segregated,' who prepared the disc that was provided to petitioner, or whether anyone reviewed the disc prior to its production. . . . This failure weighs against a finding that the government took reasonable precautions to prevent inadvertent disclosure. Further, the government's assertions concerning the facts relevant to its claims of inadvertent production are not supported by affidavits and therefore have no evidentiary value.")

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

Chapter: 27.1208
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; "Here . . . 58 documents consisting of 570 pages, approximately ten percent of the total pages produced from the ATF-STL file, should not have gone unnoticed if the government had conducted even a cursory review of the disc on which they were produced. Further, the government has not provided any evidence as to who or how many persons checked the documents prior to production.")

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

Chapter: 27.1208
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 Jurisdiction State Cite Checked
2015-03-17 Federal PA

Chapter: 27.1208
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; "Notably absent from Defendants' naked assertion of a privilege review is 'when [the] review occurred, how much time [Prior Counsel] took to review the documents, what ['certain'] documents were reviewed, and other basic details of the review process.'")

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

Chapter: 27.1208
Case Name: United States ex rel. Schaengold v. Memorial Health, Inc., No. 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
December 17, 2014 (PRIVILEGE POINT)

“It Can be Nearly Impossible to Satisfy Some Courts' Privilege Protection Standards: Part I”

Although federal courts generally articulate the same basic attorney-client privilege principles, they can demonstrate enormous variation when applying those principles. In some situations, it might be nearly impossible for companies to successfully assert privilege protection.

In United States ex rel. Schaengold v. Memorial Health, Inc., No. 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014), defendants sought to retrieve one document (out of 30,000 documents produced) that they claimed to have inadvertently produced to the government. They described the document as a draft sent to the company's lawyer, portions of which the client deleted at the lawyer's request before disclosing the final version to third parties. The court found that the document did not deserve privilege protection, because the lawyer's supporting affidavit "fails to show who exactly sent the Draft Document, whether the primary purpose of the communication was for legal advice, or whether the communication was indeed confidential." Id. at *9. Turning to the inadvertent production issue, the court found defendants' "naked assertion of a privilege review" inadequate — because defendants did not describe "'when [the] review occurred, how much time [Prior Counsel] took to review the documents, what ['certain'] documents were reviewed, and other basic details of the review process.'" Id. at *17 (citation omitted; alterations in original).

The next Privilege Point will describe another federal court's similar decision issued seven days later.

Case Date Jurisdiction State Cite Checked
2014-11-05 Federal GA
Comment:

key case


Chapter: 27.1208
Case Name: Jo Ann Howard & Assocs., P.C. v. Cassity, Case No. 4:09CV-01252 ERW, 2013 U.S. Dist. LEXIS 101135, at *21 (E.D. Miss. July 19, 2013)
(finding that an inadvertent of production of a document resulted in a waiver; "Defendants provided no affidavits to support their claims of inadvertence and ignored facts defeating their position.")

Case Date Jurisdiction State Cite Checked
2013-07-19 Federal MS B 4/14

Chapter: 27.1208
Case Name: Clark Cnty. v. Jacobs Facilities, Inc., Case No. 2:10 cv 00194 LRH PAL, 2012 U.S. Dist. LEXIS 141651, at *29, *14 (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); "[T]he words 'privileged' and 'confidential' are misspelled on the document as 'privilage' and 'confindential'. These misspellings likely prevented the document from being caught during Jacobs' privilege review which was conducted electronically."; ultimately holding that the inadvertent disclosure of privileged documents did not result in a waiver)

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

Chapter: 27.1208
Case Name: Clark Cnty. v. Jacobs Facilities, Inc., Case No. 2:10 cv 00194 LRH PAL, 2012 U.S. Dist. LEXIS 141651, at *29, 24 (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); "[T]he phrase 'client-attorney' was used on the mitigation plan, rather than the phrase 'attorney-client.'"; ultimately holding that the inadvertent disclosure of privileged documents did not result in a waiver)

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

Chapter: 27.1301
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; "Along with the reasonableness of precautions taken to prevent inadvertent disclosure, the Court also considers the number of documents disclosed. In this case, LabMD filed one document with two exhibits, a number readily within the ability of counsel to review prior to filing. This is not a situation where a small number of documents are overlooked in the course of a mass document production, entitling counsel to more deference.")

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

Chapter: 27.1301
Case Name: King Pharms., Inc. v. Purdue Pharma L.P., Case No. 1:08CV00050, 2010 U.S. Dist. LEXIS 54407, at *5-6 (W.D. Va. June 2, 2010)
(holding that under Federal Rule of Evidence 502 a litigant's inadvertent disclosure did not result in a waiver; "The fact that the document had been reviewed and partially redacted does not by itself prevent the disclosure from being inadvertent. The nature of the mistake in disclosing a document is not limited by the rules, and logically ought to include mistaken redaction, as well as other types of mistakes that result in disclosure.")

Case Date Jurisdiction State Cite Checked
2010-06-02 Federal VA B 4/13

Chapter: 27.1302
Case Name: Carmody v. Board of Trustees of the Universitiy of Illinois, No. 16-1335, 2018 U.S. App. LEXIS 16425 (7th Cir. App. June 19, 2018)
(analyzing the implications of the inadvertent disclosure of privileged documents under mysterious circumstances; "The district court also found that the defendants took reasonable steps to prevent the disclosure, focusing on the fact that just one privileged document slipped through. On this record, that finding was not clearly erroneous, even though the scale of this document production lay toward the modest end of the spectrum in modern discovery practice. Carmody acknowledges that some review took place to winnow the thousands of documents down to the several hundred produced and to avoid production of privileged documents. The fact that the Perry memorandum was referenced on the privilege logs reflects that winnowing and screening for privileged documents. The district court apparently inferred that the university's review procedures were reasonable, albeit imperfect, and credited the university's representations in its motion to compel that it took steps to review the documents for privilege. That view was not clearly erroneous. The university lawyer's oversight was surely a doozy, but the point of Rule 502(b) is to protect client's confidences from their lawyers' human errors like this one.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal

Chapter: 27.1302
Case Name: Carmody v. Board of Trustees of the Universitiy of Illinois, No. 16-1335, 2018 U.S. App. LEXIS 16425 (7th Cir. App. June 19, 2018)
(analyzing the implications of the inadvertent disclosure of privileged documents under mysterious circumstances; "Out of the hundreds of documents produced to Carmody and out of all the documents logged in the university's privilege logs, this was apparently the only one to slip through. That single slip indicates an unfortunate but inadvertent mistake rather than a casual, produce-first, review-later approach.")

Case Date Jurisdiction State Cite Checked
2018-06-19 State IL

Chapter: 27.1302
Case Name: Audubon Society of Portland v. Zinke, Case No. 1:17-cv-00069-CL (lead), 2018 U.S. Dist. LEXIS 53570 (D. Ore. March 27, 2018)
(holding that the federal government's inadvertent disclosure resulted in a waiver, which triggered a subject matter waiver; "Here, Federal Defendants note that the sheer size of the administrative record -- over 120,000 pages -- caused the inadvertent disclosure of the comment at issue, 'despite [their] best efforts[.]'. . . . As stated, the number of documents is a factor the court must consider; in fact, Rule 502's Advisory Committee Notes expressly say courts should take into account 'the number of documents to be reviewed.' And the Court is sympathetic to the sheer size of the record in this case; however, the fact that Federal Defendants disclosed the comment at issue in three separate iterations of the record and in a FOIA request lessens the weight given to this factor.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal OR

Chapter: 27.1302
Case Name: Raynor v. District of Columbia, Civ. A. No. 14-0750 (RC), 2018 U.S. Dist. LEXIS 23227 (D.D.C. Feb. 12, 2018)
(holding that a protective order did not apply to documents that had been inadvertently disclosed earlier, so the litigant could not rely on the protective order to claw-back the documents; "Even if the District's production of privileged information was inadvertent, it must still prove that it took reasonable steps to prevent disclosure. . . . But the District makes no effort to provide any detail or in any way explain the sorts of procedures or methodologies it followed in reviewing and producing documents. . . . Rather, the District argues only summarily, and without record support, that the small fraction of privileged documents inadvertently slipped through its process as part of large productions on tight deadlines. These assertions come only in the form of unsworn statements from counsel, and for whom it is unclear how much personal knowledge counsel may actually have on the issues of discovery here. This is simply not enough. Indeed, other Judges on this Court have admonished the District on exactly this point.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal DC

Chapter: 27.1302
Case Name: Irth Solutions, LLC v. Windstream Communications LLC, Civ. A. 2:16-cv-219, 2017 U.S. Dist. LEXIS 121241 (S.D. Ohio Aug. 2, 2017)
(finding that the inadvertent production on two occasions of forty-three protected documents resulted in a waiver, and also holding that a claw-back agreement did not allow the producing party the right to retrieve the documents; "[T]he privileged documents represent more than 10% of the documents produced; only 2200 total pages were produced and Defendant had months to produce the first production; and the review process 'mistake' was not the result of a technical error or mistake borne from hours and hours of review for this case. Accordingly, the Court finds under the second approach, Defendant's production was reckless. This recklessness leads the Court to hold that privilege has in fact been waived.")

Case Date Jurisdiction State Cite Checked
2017-08-02 Federal OH

Chapter: 27.1302
Case Name: Irth Solutions, LLC v. Windstream Communications LLC, Civ. A. 2:16-cv-219, 2017 U.S. Dist. LEXIS 121241 (S.D. Ohio Aug. 2, 2017)
(finding that the inadvertent production on two occasions of forty-three protected documents resulted in a waiver, and also holding that a claw-back agreement did not allow the producing party the right to retrieve the documents; "It is also worth noting that the first production was not the result of a technical error or third party-vendor mistake. Instead, attorneys reviewed a limited number of documents and made critical and reckless mistakes. This is not a case in which defense counsel was reviewing hundreds of thousands of documents and a few managed to evade review -- a situation that is likely and almost unavoidable in massive document reviews. Instead, this is a case in which only 1400 readable pages were produced initially, and of those pages, 146 pages -- or more than 10% of the entire production -- were missed."; "And then, Defendant produced the exact same documents again -- while simultaneously asking this Court to protect its privilege. Although defense counsel testified a 'spot check' was performed of the documents in the second production, once again, the facts do not add up. With twenty-nine documents (totaling 112 pages) needing redactions, even the most rudimentary spot check would have raised suspicions, as none of the documents in the second production contained any redactions at all.")

Case Date Jurisdiction State Cite Checked
2017-08-02 Federal OH

Chapter: 27.1302
Case Name: Lloyds of London Syndicate 2003 v. Fireman's Fund Ins. Co., Case No. 15-CV-2681-DDC-GLR, 2017 U.S. Dist. LEXIS 104130 (D. Kansas July 6, 2017)
(holding that the testifying expert's inadvertent disclosure of privileged documents to the plaintiff did not waive privilege protection under Rule 502; "Here, defense counsel affirmatively decided not to review Mr. Murphy's expert report. . . . Instead, defense counsel 'reasonably relied upon Mr. Murphy to cull out the protected documents' on his own because he had 'extensive experience in litigation in federal court' and defense counsel had briefed him about the matter. Id. Although counsel could have monitored Mr. Murphy's culling more closely, the court nonetheless finds counsel's actions reasonable."; "[D]efense counsel might have taken fuller precautions, but the court nonetheless concludes that counsel's actions did not waive work product protection. The court thus concludes that this first factor slightly weighs against waiver."; "[D]efense counsel notified plaintiff's counsel immediately when the inadvertent disclosure was revealed at the deposition."; "[T]his case involves only one inadvertently produced document. But, the court lacks information about the total number of documents defendant has produced during the entire litigation. Even without this information, this single inadvertent disclosure is minor."; "Defendant only disclosed the email to plaintiff's counsel. Indeed, plaintiff concedes that it has not shared the email with its expert or any other person. . . . Under these circumstances, no extensive disclosure has occurred."; "Also, plaintiff's counsel never questioned Mr. Murphy about the email after defense counsel timely notified them of the inadvertent disclosure.")

Case Date Jurisdiction State Cite Checked
2017-07-06 Federal

Chapter: 27.1302
Case Name: Bailey v. Oakwood Healthcare, Inc., Case No. 15-11799, 2017 U.S. Dist. LEXIS 13667 (E.D. Mich. Feb. 1, 2017)
(finding that defendant's inadvertent production of documents did not result in a waiver, although inexplicably failing to cite Rule 502; "Defendant has produced over 5,000 pages of documents in the course of discovery overall . . . even in the context of 873 pages, two pages of notes does not amount to much.")

Case Date Jurisdiction State Cite Checked
2017-02-01 Federal MI

Chapter: 27.1302
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; "Of over 30,000 documents produced, Defendants' current motion asks the Court to find that only one document was privileged. However, the Court notes that it cannot say for certain the number of potentially privileged documents that were actually disclosed and, unsurprisingly, Defendants do not reveal just how many potentially privileged documents they suspect might have been disclosed. As such, the Court will not assume that only one potentially privileged document was disclosed.")

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

Chapter: 27.1302
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 Jurisdiction State Cite Checked
2014-11-05 Federal GA

Chapter: 27.1302
Case Name: Szulik v. State Street Bank and Trust Co., Civ. A. No. 12-10018-NMG, 2014 U.S. Dist. LEXIS 110447 (D. Mass. Aug. 11, 2014)
("[I]n light of the protective order entered into by the parties, the fact that State Street produced another copy of the email chain does not constitute a waiver of any privilege. The protective order allows a party to claw back a document regardless of whether its production was negligent or intentional. Further, 'work product protection is waived only when documents are used in a manner contrary to the doctrine's purpose, when disclosure substantially increases the opportunity for potential adversaries to obtain the information.'. . . Here, the disclosure was made only to the Szuliks in the context of litigation, and there was a prompt claw back request. This did not rise to the level of waiver. Such a disclosure did not take place here.")

Case Date Jurisdiction State Cite Checked
2014-08-11 Federal MA

Chapter: 27.1302
Case Name: United States v. Nunez, No. 12 Cr. 778-2, 2013 U.S. Dist. LEXIS 116145, at *8-9 (S.D.N.Y. Aug. 16, 2013)
(analyzing the effect of the government's seizure of documents from defendant; holding that the defendant's new lawyer could seek return of the documents, although the earlier defendant's earlier lawyer had not sought their return for over ninety days after their seizure; "[T]he scope of the discovery and the extent of disclosure are inapposite in the case at bar. 'Courts generally decline to find waiver when 'a relatively small number of privileged documents were disclosed in comparison to the total number of documents produced.'. . . Though this can be rationally applied in the context of civil cases, where the party claiming the privilege typically reviewed and produced the communications at issue in the normal course of discovery, it cannot control here, where the communications were not produced by either the attorney or client but by a third-party pursuant to a warrant.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal NY B 4/14

Chapter: 27.1302
Case Name: Jo Ann Howard & Assocs., P.C. v. Cassity, Case No. 4:09CV-01252 ERW, 2013 U.S. Dist. LEXIS 101135, at *20-21 (E.D. Miss. July 19, 2013)
(finding that an inadvertent of production of a document resulted in a waiver; "Defendants intentionally produced the document twice with their voluntary, initial disclosures, naming the document 'Narrative Timeline.'")

Case Date Jurisdiction State Cite Checked
2013-07-19 Federal MS B 4/14

Chapter: 27.1302
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; "In addition, Prowess only inadvertently produced 16 documents out of approximately 60,000 documents and 900,000 pages.")

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

Chapter: 27.1302
Case Name: Samaritan Alliance, LLC v. Ken. (In re Samaritan Alliance), Case No. 07-50735, Adv. No. 12-5009, 2013 Bankr. LEXIS 671, at *11 (E.D. Ken. Feb. 20, 2013)
("A party is more likely to have waived its privilege when the party's total document disclosure is relatively small and convenient to review.")

Case Date Jurisdiction State Cite Checked
2013-02-20 Federal KY B 2/14

Chapter: 27.1302
Case Name: Smith v. Allstate Ins. Co., Civ. A. No. 3:11 CV 165, 2012 U.S. Dist. LEXIS 160152, at *8 (W.D. Pa. Nov. 8, 2012)
(holding that an inadvertent production does not result in a waiver; "Here, the number of inadvertent disclosures is small. In its motion in limine, Allstate lists only seven documents which it contends remain privileged and which Plaintiff should be precluded from introducing or relying on at trial. . . . This limited number of inadvertent disclosures gains significance upon consideration of Plaintiff's allegation that Allstate served more than 1,200 pages of documents on Plaintiff in response to Plaintiff's Request for Production of Documents.")

Case Date Jurisdiction State Cite Checked
2012-11-08 Federal PA B 7.13

Chapter: 27.1302
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09 cv 1002 Orl 31TBS, 2012 U.S. Dist. LEXIS 158944, at *31-32 (M.D. Fla. Nov. 6, 2012)
("Halifax has produced thousands of documents in this litigation. The Government argues that Halifax only waived the privilege for twenty-eight documents. . . . The number of documents at issue is an extremely small portion of the total number of documents produced.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 27.1302
Case Name: Clark Cnty. v. Jacobs Facilities, Inc., Case No. 2:10 cv 00194 LRH PAL, 2012 U.S. Dist. LEXIS 141651, at *29, *25 (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); "The mitigation plan was identified and withheld from production fifty-seven times during the review of millions of documents and only six copies were produced in a single document production."; ultimately holding that the inadvertent disclosure of privileged documents did not result in a waiver)

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

Chapter: 27.1302
Case Name: Inhalation Plastics, Inc. v. Medex Cardio Pulmonary, Inc., Civ. A. No. 2:07 CV 116, 2012 U.S. Dist. LEXIS 121830, at *12 (S.D. Ohio Aug. 28, 2012)
("Medex claims that it inadvertently included 347 pages of privileged documents in the May 30 production, which consisted of approximately 7500 pages. Thus, 4.6 percent of the production, or 1 in approximately every 22 pages produced, was inadvertently disclosed. Given the relatively small number of documents in the production and Medex's assertion that 'several layers of attorneys' worked on the May 30 production, the number of inadvertent disclosures is relatively high.")

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

Chapter: 27.1302
Case Name: Inhalation Plastics, Inc. v. Medex Cardio Pulmonary, Inc., Civ. A. No. 2:07 CV 116, 2012 U.S. Dist. LEXIS 121830, at *12-13 (S.D. Ohio Aug. 28, 2012)
("The number of privileged documents that were disclosed was significant, those documents were not marked as confidential and no privilege log was provided with the disclosed documents. More importantly, the documents appear to be relevant to IPI's claims and IPI has attempted to use them in depositions. These considerations all suggest that the magnitude of the disclosure was high.")

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

Chapter: 27.1302
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"; "Turning next to the number and extent of the disclosures, the Court finds these factors to be neutral. As part of this litigation, the Borough Defendants have produced approximately 100,000 pages of documents, which represents a relatively substantial document production. . . . Given the size of the Borough Defendants' production, mistakes were bound to occur. Id. At issue here is the disclosure of 872 pages of documents, which represents only about 1% of the Borough Defendants' total production, which on a total percentage basis is notably small. Nevertheless, the Court finds that 872 pages of documents is not significant.")

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

Chapter: 27.1302
Case Name: The American Coal Sales Company v. Nova Scotia Power Inc., Case No. 2:06-cv-94, 2009 U.S. Dist. LEXIS 13550 (S.D. Ohio Feb. 23, 2009)
("The Order finds that Plaintiff took reasonable precautions to avoid inadvertent disclosures by having two attorneys review documents prior to production . . . That inadvertent production of one document out of over 2,000 documents produced does not weigh in favor of waiver . . . ; that the extent of the waiver was not great because the document had not worked its way into the fabric of the litigation."; "Defendant's objections to the Order's findings in the Nilavar analysis likewise are not well taken. Magistrate Judge Abel's factual finding that Plaintiff had taken reasonable precautions to avoid inadvertent disclosure is a reasonable finding based on the evidence that two attorneys reviewed all documents before they were produced. The fact that order, non-binding court opinions have found differently does not mean that Magistrate Judge Abel's finding is clearly erroneous. The same is true for the Order's findings related to the number of disclosures.")

Case Date Jurisdiction State Cite Checked
2009-02-23 Federal OH

Chapter: 27.1302
Case Name: FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479 (E.D. Va. 1991)
("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.")

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

Chapter: 27.1302
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 Jurisdiction State Cite Checked
1991-01-01 Federal VA

Chapter: 27.1303
Case Name: Irth Solutions, LLC v. Windstream Communications LLC, Civ. A. 2:16-cv-219, 2017 U.S. Dist. LEXIS 121241 (S.D. Ohio Aug. 2, 2017)
(finding that the inadvertent production on two occasions of forty-three protected documents resulted in a waiver, and also holding that a claw-back agreement did not allow the producing party the right to retrieve the documents; "[T]he privileged documents represent more than 10% of the documents produced; only 2200 total pages were produced and Defendant had months to produce the first production; and the review process 'mistake' was not the result of a technical error or mistake borne from hours and hours of review for this case. Accordingly, the Court finds under the second approach, Defendant's production was reckless. This recklessness leads the Court to hold that privilege has in fact been waived.")

Case Date Jurisdiction State Cite Checked
2017-08-02 Federal OH

Chapter: 27.1303
Case Name: Irth Solutions, LLC v. Windstream Communications LLC, Civ. A. 2:16-cv-219, 2017 U.S. Dist. LEXIS 121241 (S.D. Ohio Aug. 2, 2017)
(finding that the inadvertent production on two occasions of forty-three protected documents resulted in a waiver, and also holding that a claw-back agreement did not allow the producing party the right to retrieve the documents; "It is also worth noting that the first production was not the result of a technical error or third party-vendor mistake. Instead, attorneys reviewed a limited number of documents and made critical and reckless mistakes. This is not a case in which defense counsel was reviewing hundreds of thousands of documents and a few managed to evade review -- a situation that is likely and almost unavoidable in massive document reviews. Instead, this is a case in which only 1400 readable pages were produced initially, and of those pages, 146 pages -- or more than 10% of the entire production -- were missed."; "And then, Defendant produced the exact same documents again -- while simultaneously asking this Court to protect its privilege. Although defense counsel testified a 'spot check' was performed of the documents in the second production, once again, the facts do not add up. With twenty-nine documents (totaling 112 pages) needing redactions, even the most rudimentary spot check would have raised suspicions, as none of the documents in the second production contained any redactions at all.")

Case Date Jurisdiction State Cite Checked
2017-08-02 Federal OH

Chapter: 27.1303
Case Name: Viamedia, Inc. v. Comcast Corporation, Case No. 16-cv-5486, 2017 U.S. Dist. LEXIS 101852 (N.D. Ill. June 30, 2017)
(holding that an inadvertent disclosure to the Department of Justice did not waive privilege protection; "This production was large by any standard, involving a review of 600,000 documents and a production of over 300,000 documents spanning millions of pages. . . . The 432 documents at issue comprise about 0.1% of the total number of documents Viamedia produced and about 0.07% of the total documents reviewed.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal IL

Chapter: 27.1303
Case Name: Bailey v. Oakwood Healthcare, Inc., Case No. 15-11799, 2017 U.S. Dist. LEXIS 13667 (E.D. Mich. Feb. 1, 2017)
(finding that defendant's inadvertent production of documents did not result in a waiver, although inexplicably failing to cite Rule 502; "Defendant has produced over 5,000 pages of documents in the course of discovery overall . . . even in the context of 873 pages, two pages of notes does not amount to much.")

Case Date Jurisdiction State Cite Checked
2017-02-01 Federal MI

Chapter: 27.1303
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; "Here . . . 58 documents consisting of 570 pages, approximately ten percent of the total pages produced from the ATF-STL file, should not have gone unnoticed if the government had conducted even a cursory review of the disc on which they were produced. Further, the government has not provided any evidence as to who or how many persons checked the documents prior to production.")

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

Chapter: 27.1303
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 Jurisdiction State Cite Checked
2014-11-05 Federal GA

Chapter: 27.1303
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; "Of over 30,000 documents produced, Defendants' current motion asks the Court to find that only one document was privileged. However, the Court notes that it cannot say for certain the number of potentially privileged documents that were actually disclosed and, unsurprisingly, Defendants do not reveal just how many potentially privileged documents they suspect might have been disclosed. As such, the Court will not assume that only one potentially privileged document was disclosed.")

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

Chapter: 27.1303
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 Jurisdiction State Cite Checked
2013-12-13 State DE B 5/14

Chapter: 27.1303
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 *116, *17-18 (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; "[T]he 116 documents at issue here represent less than one-hundredth of one percent of the approximately 1.5 million documents reviewed, and less than one-tenth of one percent of the approximately 156,000 documents that BNP produced in this litigation."; "Taken together, the evidence presented suggests that BNP took reasonable precautions to protect the confidentiality of privileged documents and prevent disclosure. Accordingly, the first Lois Sportswear factor weighs in favor of finding that the Documents were produced inadvertently rather than as a knowing waiver.")

Case Date Jurisdiction State Cite Checked
2013-05-21 Federal NY V 3/14

Chapter: 27.1303
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 *20-21 (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; "Here, the large scope of discovery weighs against a finding of waiver. As previously discussed, the document production involved 1.5 million documents totaling 2.8 million pages. The Documents at issue here represent less than one-hundredth of one percent of those reviewed. Courts have found that '[s]uch errors are, of course, inevitable in complex litigation involving the production of tens of thousands of documents.' Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437 (S.D.N.Y. 1995); see Jacob [Jacob v. Duane Reade, Inc., No. 11 Civ. 0160 (JMO) (THK), 2012 U.S. Dist. LEXIS 25689, at *12 (S.D.N.Y. Feb. 28, 2012)] (deeming disclosure inadvertent where privileged material was disclosed 'as part of the production of voluminous amounts of ESI'); Datel Holdings [Datel Holdings Ltd. v. Microsoft Corp., No. C-09-05535 EDL, 2011 U.S. Dist. LEXIS 30872, at *14 (N.D. Cal. Mar. 11, 2011)] ('In relatively large productions of electronic information under a relatively short timetable, perfection or anything close based on the clairvoyance of hindsight cannot be the standard; otherwise, the time and expense required to avoid mistakes to safeguard against waiver would be exorbitant, and complex cases could take years to ready for trial.').")

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

Chapter: 27.1303
Case Name: Inhalation Plastics, Inc. v. Medex Cardio Pulmonary, Inc., Civ. A. No. 2:07 CV 116, 2012 U.S. Dist. LEXIS 121830, at *12 (S.D. Ohio Aug. 28, 2012)
("Medex claims that it inadvertently included 347 pages of privileged documents in the May 30 production, which consisted of approximately 7500 pages. Thus, 4.6 percent of the production, or 1 in approximately every 22 pages produced, was inadvertently disclosed. Given the relatively small number of documents in the production and Medex's assertion that 'several layers of attorneys' worked on the May 30 production, the number of inadvertent disclosures is relatively high.")

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

Chapter: 27.1303
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"; "Moreover, the Court does not necessarily agree with the Borough Defendants that the extent of their disclosures should be based on their total documents production. While that method was apparently used in Sensient, 2009 U.S. Dist. 81951, 2009 WL 2905474, at *4, and Peterson [Peterson v. Bernardi, 262 F.R.D. 424, 427 (D.N.J. 2009)], 262 F.R.D. at 429, the Court in Ciba-Giegy [Ciba-Giegy Corp. v. Sandoz Ltd., 916 F. Supp. 404, 411 (D.N.J. 1995)] focused not on the defendants' total production but on the 681 documents counsel had designated for use in two depositions. 916 F. Supp. At 407, 414. If the Court focuses more narrowly on the total number of documents produced on August 12, 2010 (approximately 26,000 pages) or even more so on only the Ryan/McKenna documents (approximately 12,000 pages), the extent of the disclosure increases to approximately 3% or 7% respectively, more significant figures.")

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

Chapter: 27.1303
Case Name: In re Grand Jury Investigation, M-92-12, 1992 U.S. Dist. LEXIS 14406 (M.D.N.C. March 24, 1992)
(finding that an inadvertent production did not waive the privilege; "The low ratio here, 18 documents out of 300,000 pages reviewed, is not, in the court's view, suggestive of inadequate precautions.")

Case Date Jurisdiction State Cite Checked
1992-03-24 Federal NC

Chapter: 27.1401
Case Name: Carmody v. Board of Trustees of the Universitiy of Illinois, No. 16-1335, 2018 U.S. App. LEXIS 16425 (7th Cir. App. June 19, 2018)
(analyzing the implications of the inadvertent disclosure of privileged documents under mysterious circumstances; "The district court also found that the university, as holder of the privilege, took prompt and reasonable steps to rectify the disclosure. The university's outside counsel immediately tried to 'claw-back' the Perry memorandum upon opposing counsel's attempt to use it. At Adesida's deposition, the university's outside counsel immediately claimed inadvertence, instructed Adesida not to answer questions about the document, and requested that Carmody's lawyer destroy all copies of the document in his possession. The lawyer followed up with a letter and, upon reaching an impasse with Carmody's lawyer, filed the appropriate motion to compel return of the document and to bar its use as evidence. An element of basic fairness here also weighs against Carmody because of his lawyer's tactics. He or his lawyer surreptitiously photographed the document, stayed silent for a year, tried to surprise the university with the document at a deposition, and then made the document public by attaching it as an exhibit to a motion for summary judgment after defense counsel had demanded its return but before the court could resolve the issue.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal

Chapter: 27.1401
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 Jurisdiction State Cite Checked
2010-01-01 State VA

Chapter: 27.1402
Case Name: Ranger Construction Industries, Inc. v. Allied World National Assurance Co., Civ. No. 17-81226-CIV-Marra/Matthewman, 2019 U.S. Dist. LEXIS 18617, at *19 (S.D. Fla. Feb. 5, 2019)
April 17, 2019 (PRIVILEGE POINTS)

"Can The Flu Affect A Waiver Analysis?"

Fed R. Evid. 502 adopts the earlier majority common law view, finding that the inadvertent production of documents does not waive privilege or work product protection if: (1) it was inadvertent; (2) the protection holder "took reasonable steps to prevent disclosure"; and (3) "the holder promptly took reasonable steps to rectify the error." In analyzing the last factor, courts understandably assess the context. Most if not all courts start the rectification clock ticking when the holder learns of the inadvertent disclosure. After that, the holder must act quickly.

In Ranger Construction Industries, Inc. v. Allied World National Assurance Co., the defendant inadvertently included several privileged documents in a December 20 production – which the court helpfully noted was "right before the Christmas holiday." Civ. No. 17-81226-CIV-Marra/Matthewman, 2019 U.S. Dist. LEXIS 18617, at *19 (S.D. Fla. Feb. 5, 2019). Eight days later, plaintiff's lawyer alerted her counterpart that the production included possibly privileged documents. The court acknowledged that plaintiff's lawyer had not provided those documents' Bates numbers, but explained that "she was ill with the flu over the holidays and ultimately hospitalized, which certainly accounts for any alleged deficiency in the letter." Id. at *20. Because "Defendant's counsel's office was closed for the holidays until January 2," the lawyers did not confer until that day – at which time defendant's lawyer acknowledged the inadvertence, and sought the documents' return. Id. at *19. The court ultimately concluded that defendant's lawyer "took reasonable steps to rectify the error" – thus avoiding a privilege waiver despite the nearly two-week delay since the production. Id. at *21.

Not all courts would be this generous, so litigants who inadvertently produce protected documents should immediately alert the recipient and at least demand their return or destruction.

Case Date Jurisdiction State Cite Checked
2019-02-05 Federal FL
Comment:

key case


Chapter: 27.1402
Case Name: Carmody v. Board of Trustees of the Universitiy of Illinois, No. 16-1335, 2018 U.S. App. LEXIS 16425 (7th Cir. App. June 19, 2018)
(analyzing the implications of the inadvertent disclosure of privileged documents under mysterious circumstances; "The University of Illinois fired plaintiff Kevin Carmody from his job as an information technology manager after printed copies of a professor's privileged emails suspiciously ended up in Carmody's home newspaper box."; "The university's lawyer represented to the district court that his firm logged the Perry memorandum as a 'legal memo' attached to one email and as an 'outline' attached to another email but did not otherwise identify it."; "The Perry memorandum bore the bold, all-caps heading: 'ATTORNEY-CLIENT COMMUNICATION PRIVILEGED AND CONFIDENTIAL.' Carmody and/or his lawyer photographed the document with a cell phone and stayed silent for about a year. The parties dispute whether Carmody flagged the document for copying."; "At Adesida's deposition -- about one year after the production -- Carmody's lawyer broke the silence and tried to surprise Adesida and the university with the document. Carmody's lawyer told the university's outside counsel that the document 'was one that we wanted you to copy' and tried to question Adesida about it. The university's outside counsel said that the document was 'inadvertently disclosed' and that the privilege had not been waived, instructed Adesida not to answer questions about the substance of the document, and requested that Carmody's lawyer destroy all copies of the Perry memorandum in his possession. One week after the deposition, the university's outside counsel wrote a letter to Carmody's lawyer again asking to 'claw-back' the Perry memorandum. Carmody's lawyer filed the Perry memorandum as an exhibit to Carmody's motion for summary judgment. After counsel were unable to agree on what to do, the university filed a prompt motion to compel plaintiff's counsel to return the Perry memorandum and to bar plaintiff from using it as evidence. The district court granted the motion.")

Case Date Jurisdiction State Cite Checked
2018-06-19 State IL

Chapter: 27.1402
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("Fourth, the Court considers any delay and the measures taken to recover the documents. AbbVie clawed back entries 4054 and 4055 'as soon as it discovered that the document[s] had been produced.' See slip sheet for AbbVie Priv. Log Entries 4054 & 4055. AbbVie clawed back entry 4054 on October 17, 2016, and entry 4055 on December 19, 2016, each time with specific reference to a Protective Order in. . . . The Court concludes that AbbVie's response was prompt and without delay, and that its clawback letters were appropriate to rectify the inadvertent disclosure.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 27.1402
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 Jurisdiction State Cite Checked
2017-03-20 Federal FL
Comment:

key case


Chapter: 27.1402
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; "[T]he Court finds that the government learned or should have learned of the disclosure at Agent Johnson's deposition on September 16, 2014, some five months before it asserted the inadvertent disclosure of privileged documents."; "The delay of five months between Agent Johnson's deposition and the government's assertion of privilege weighs in favor of a finding of waiver, as the government was put on notice but did not timely take action to rectify its error.")

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

Chapter: 27.1402
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; "Although the length of time Plaintiffs had possession of the Logel document weighs somewhat in favor of waiver, there was no reason for Ford to suspect that the document had been produced by its vendor against the express instructions of Ford's litigation counsel until the document was discovered during deposition preparation. Plaintiffs' contention that Ford's counsel should have suspected disclosure when Ford received Plaintiffs' request for the deposition of Said Deep presumes a duty on Ford's counsel to immediately collect Mr. Deep's documents simply because his deposition was requested, even though it was not yet scheduled. That presumption is not realistic given the demands and time constraints of large-scale litigation, as well as the mutable demands made by parties during the discovery process. For these reasons, the undersigned finds this factor to be neutral.")

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

Chapter: 27.1402
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 parties agree that there was no measurable delay on Ford's part in attempting to rectify the error once the mistake was known. Plaintiffs suggest that Ford should have realized its error sooner in view of some of its discovery requests, but this particular factor focuses on the actions of the producing party after it discovers the inadvertent disclosure."; "Here, Ford's counsel discovered the potential inadvertent disclosure of the Logel document on a Sunday evening. The following day, co-counsel confirmed the error and immediately sought clawback of the document by written notification and request to all known recipients of the BOA documents. Therefore, this factor weighs in favor of preserving the privilege.")

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

Chapter: 27.1402
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; "Here, GAF's attorney represents that he first became aware of the inadvertent disclosure of GAF 745 and GAF 815 on February 2, 2015, while he was preparing for depositions in this case scheduled for the week of February 9, 2015. On the same day that he discovered the inadvertent disclosure, GAF's attorney informed Thermoset's attorney that these documents were protected by the attorney-client privilege and had been inadvertently produced. He additionally requested that Thermoset destroy the documents. February 2, 2015 email . . . . Clearly, GAF's attorney took prompt remedial action as soon as he became aware of the inadvertent disclosure. Hence, Rule 502(b)'s third element has also been satisfied.")

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

Chapter: 27.1402
Case Name: Educ. Assistance Found. for Descendants of Hungarian Immigrants in the Performing Arts, Inc. v. United States, Civ. A. No. 11-1573 (RBW), 2014 U.S. Dist. LEXIS 40579, at *26-27, *29-30 (D.D.C. Mar. 27, 2014)
(analyzing the waiver effect of a privileged document ending up with the IRS, although no one knew how the IRS obtained it; finding a waiver, because the document's owner did not immediately take steps to retrieve the document upon discovering that the IRS possessed it; "The Court disagrees that these half-hearted and untimely attempts to assert the privilege are sufficient to preserve any claim of privilege as to the document. Barrett Weinberger first learned that the IRS possessed a copy of the Weinberger-Bolden Letter when it enclosed a copy of the letter in its April 20, 2009 Information Document Request, but took no action whatsoever to assert the privilege until January 11, 2010, over eight months later. Even then, the Foundation did not make any attempt to recover the Weinberger-Bolden Letter, but merely asserted its position that the document was protected by the privilege and thus 'should be excised and not relied upon.' . . . Neither the Foundation nor the Schaller Estate beneficiaries demanded the return of the document until December 1, 2010, nearly two years after Weinberger learned that the IRS possessed it. Such an inordinate delay in action to recover the document is inconsistent with the confidentiality objective which underlies the attorney-client privilege."; "While the Foundation and the beneficiaries of the Schaller Estate have raised the claim of privilege on several occasions since learning of the disclosure of the Weinberger-Bolden Letter in April 2009, long periods of inaction have followed most of the attempts to recover the document. . . . [T]he IRS consistently ignored the Foundation's and the Estate's occasional efforts to retrieve the Weinberger-Bolden Letter. Instead of taking additional steps to recover the letter, the alleged privilege holders allowed the letter to remain with the IRS with full knowledge that the agency continued to use it without limitation.")

Case Date Jurisdiction State Cite Checked
2014-03-27 Federal DC B 8/14

Chapter: 27.1402
Case Name: RIPL Corp. v. Google, Inc., No. 2:12-cv-02050-RSM, 2013 U.S. Dist. LEXIS 179193, at *10 (W.D. Wash. Dec. 17, 2013)
(analyzing the effect of a claw-back order which had both the inadvertent and the prompt remedial step standards; "With respect to the word 'prompt,' courts have found that when counsel contacted the opposing party within a few days of the inadvertent disclosure, such notice was in fact 'prompt.' . . . Here, notice was provided one day after the disclosure was discovered and was therefore prompt.")

Case Date Jurisdiction State Cite Checked
2013-12-17 Federal WA B 5/14

Chapter: 27.1402
Case Name: Mycone Dental Supply Co. Inc. v. Creative Nail Design Inc., No. C-12-00747-RS (DMR), 2013 U.S. Dist. LEXIS 126336, at *8-9, *10-12 (N.D. Cal. Sept. 4, 2013)
(holding that a third party could not claw back documents because it did not comply with the protective order's deadline for doing so; "The court denies Gel's [third party] clawback request because Gel did not promptly take reasonable steps to rectify the error. Gel took 49 days to send a clawback letter after it discovered the disclosure of at least one of the disputed documents during the Rule 30(b)(6) deposition. Gel has offered a sequence of excuses for this delay, including that Gel sought a second opinion from another attorney, that Gel's 30(b)(6) witness became less available even as she insisted on reviewing the entire production document by document, that Hoffman, one attorney in a two-person firm, was on vacation or busy with other matters, and that no other deadlines were upcoming in this litigation. . . . These excuses do not justify Gel's seven-week delay in sending a recall letter -- at the least, Gel should have recalled the document that was used in the deposition immediately after the deposition and then conducted a more thorough and timely investigation into the rest of the production after the initial clawback request." (footnote omitted); "Gel argues that the delay should be measured starting from when counsel finally confirmed, after investigation, that the documents were privileged, not from the date of Lilley's [patent owner] deposition. . . . Here, Gel took 45 days to research its assertion of privilege before sending its clawback letter. This research covered three or four essentially identical sentences in nine essentially identical form transmittal letters, the author of which was obvious on the face of the letters. Under these circumstances, Gel's delay neither meets the requirements of the protective order nor the requirement under Rule 502(b) that the producing party take 'reasonable steps to rectify the error' of the inadvertent disclosure.")

Case Date Jurisdiction State Cite Checked
2013-09-04 Federal CA B 4/14

Chapter: 27.1402
Case Name: Samaritan Alliance, LLC v. Ken. (In re Samaritan Alliance), Case No. 07-50735, Adv. No. 12-5009, 2013 Bankr. LEXIS 671, at *9-10 (E.D. Ken. Feb. 20, 2013)
("[T]he Cabinet [Kentucky Cabinet for Health & Family Services] acted too slowly. The Cabinet received an email from Samaritan's counsel on November 21, 2012 contending that the Cabinet had waived its attorney-client privilege and basing this contention on the disclosed Emails. Samaritan thus alerted the Cabinet as to the disclosure of the potentially privileged Emails. But the Cabinet did not request the return of the Emails until December 4, 2012 -- a day after they had been used as an exhibit in the Johnson deposition without objection. Given these circumstances, the Cabinet's delay in requesting the return of the Emails weighs toward a finding of waiver.")

Case Date Jurisdiction State Cite Checked
2013-02-20 Federal KY B 2/14

Chapter: 27.1402
Case Name: Heriot v. Byrne, Case No. 08 C 2272, 2009 U.S. Dist. LEXIS 22552 (N.D. Ill. March 20, 2009)
(finding that an inadvertent production due to an outside vendor's error did not waive the privilege; "[A]lthough Plaintiffs disclosed 13 percent of their privileged documents, the weight of the factors tips the balance in favor of inadvertent disclosure. First, Plaintiffs used reasonable procedures to review the Sequestered Documents and, after this review, the Vendor erroneously disclosed privileged documents. Plaintiffs had no reason to suspect the Vendor would inadvertently produce documents that Plaintiffs had already designated as privileged. Furthermore, there were no signs of indications after production that the Vendor made any inadvertent disclosure. Finally, upon learning of the disclosure, Plaintiffs immediately contacted Defendants, claimed attorney-client privilege, identified the privileged documents, and requested their destruction.")

Case Date Jurisdiction State Cite Checked
2009-03-20 Federal IL

Chapter: 27.1403
Case Name: Ranger Construction Industries, Inc. v. Allied World National Assurance Co., Civ. No. 17-81226-CIV-Marra/Matthewman, 2019 U.S. Dist. LEXIS 18617, at *19 (S.D. Fla. Feb. 5, 2019)
April 17, 2019 (PRIVILEGE POINTS)

"Can The Flu Affect A Waiver Analysis?"

Fed R. Evid. 502 adopts the earlier majority common law view, finding that the inadvertent production of documents does not waive privilege or work product protection if: (1) it was inadvertent; (2) the protection holder "took reasonable steps to prevent disclosure"; and (3) "the holder promptly took reasonable steps to rectify the error." In analyzing the last factor, courts understandably assess the context. Most if not all courts start the rectification clock ticking when the holder learns of the inadvertent disclosure. After that, the holder must act quickly.

In Ranger Construction Industries, Inc. v. Allied World National Assurance Co., the defendant inadvertently included several privileged documents in a December 20 production – which the court helpfully noted was "right before the Christmas holiday." Civ. No. 17-81226-CIV-Marra/Matthewman, 2019 U.S. Dist. LEXIS 18617, at *19 (S.D. Fla. Feb. 5, 2019). Eight days later, plaintiff's lawyer alerted her counterpart that the production included possibly privileged documents. The court acknowledged that plaintiff's lawyer had not provided those documents' Bates numbers, but explained that "she was ill with the flu over the holidays and ultimately hospitalized, which certainly accounts for any alleged deficiency in the letter." Id. at *20. Because "Defendant's counsel's office was closed for the holidays until January 2," the lawyers did not confer until that day – at which time defendant's lawyer acknowledged the inadvertence, and sought the documents' return. Id. at *19. The court ultimately concluded that defendant's lawyer "took reasonable steps to rectify the error" – thus avoiding a privilege waiver despite the nearly two-week delay since the production. Id. at *21.

Not all courts would be this generous, so litigants who inadvertently produce protected documents should immediately alert the recipient and at least demand their return or destruction.

Case Date Jurisdiction State Cite Checked
2019-02-05 Federal FL
Comment:

key case


Chapter: 27.1403
Case Name: Carmody v. Board of Trustees of the Universitiy of Illinois, No. 16-1335, 2018 U.S. App. LEXIS 16425 (7th Cir. App. June 19, 2018)
(analyzing the implications of the inadvertent disclosure of privileged documents under mysterious circumstances; "The district court also found that the university, as holder of the privilege, took prompt and reasonable steps to rectify the disclosure. The university's outside counsel immediately tried to 'claw-back' the Perry memorandum upon opposing counsel's attempt to use it. At Adesida's deposition, the university's outside counsel immediately claimed inadvertence, instructed Adesida not to answer questions about the document, and requested that Carmody's lawyer destroy all copies of the document in his possession. The lawyer followed up with a letter and, upon reaching an impasse with Carmody's lawyer, filed the appropriate motion to compel return of the document and to bar its use as evidence. An element of basic fairness here also weighs against Carmody because of his lawyer's tactics. He or his lawyer surreptitiously photographed the document, stayed silent for a year, tried to surprise the university with the document at a deposition, and then made the document public by attaching it as an exhibit to a motion for summary judgment after defense counsel had demanded its return but before the court could resolve the issue.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal

Chapter: 27.1403
Case Name: Carmody v. Board of Trustees of the Universitiy of Illinois, No. 16-1335, 2018 U.S. App. LEXIS 16425 (7th Cir. App. June 19, 2018)
(analyzing the implications of the inadvertent disclosure of privileged documents under mysterious circumstances; "The University of Illinois fired plaintiff Kevin Carmody from his job as an information technology manager after printed copies of a professor's privileged emails suspiciously ended up in Carmody's home newspaper box."; "The university's lawyer represented to the district court that his firm logged the Perry memorandum as a 'legal memo' attached to one email and as an 'outline' attached to another email but did not otherwise identify it."; "The Perry memorandum bore the bold, all-caps heading: 'ATTORNEY-CLIENT COMMUNICATION PRIVILEGED AND CONFIDENTIAL.' Carmody and/or his lawyer photographed the document with a cell phone and stayed silent for about a year. The parties dispute whether Carmody flagged the document for copying."; "At Adesida's deposition -- about one year after the production -- Carmody's lawyer broke the silence and tried to surprise Adesida and the university with the document. Carmody's lawyer told the university's outside counsel that the document 'was one that we wanted you to copy' and tried to question Adesida about it. The university's outside counsel said that the document was 'inadvertently disclosed' and that the privilege had not been waived, instructed Adesida not to answer questions about the substance of the document, and requested that Carmody's lawyer destroy all copies of the Perry memorandum in his possession. One week after the deposition, the university's outside counsel wrote a letter to Carmody's lawyer again asking to 'claw-back' the Perry memorandum. Carmody's lawyer filed the Perry memorandum as an exhibit to Carmody's motion for summary judgment. After counsel were unable to agree on what to do, the university filed a prompt motion to compel plaintiff's counsel to return the Perry memorandum and to bar plaintiff from using it as evidence. The district court granted the motion.")

Case Date Jurisdiction State Cite Checked
2018-06-19 State IL

Chapter: 27.1403
Case Name: Audubon Society of Portland v. Zinke, Case No. 1:17-cv-00069-CL (lead), 2018 U.S. Dist. LEXIS 53570 (D. Ore. March 27, 2018)
(holding that the federal government's inadvertent disclosure resulted in a waiver, which triggered a subject matter waiver; "Here, Federal Defendants asserted attorney-client privilege over the comment at issue within two weeks and filed this present motion within thirty-five days of initially being made aware of the disclosure. This timeframe stands in contrast with the seven-week delay deemed too long in Mycone Dental Supply Co v. Creative Nail Design Inc., No. C-12-00747-RS, 2013 U.S. Dist. LEXIS 126336, 2013 WL 4758053, at *3 (N.D. Cal. Sept. 4, 2013). Moreover, it is evident from the e-mail chain, which was attached as an exhibit to Federal Defendants' motion, that part of the delay occurred because counsel for Federal Defendants had reached out to, and were waiting for replies from, the numerous attorneys involved in this matter as to whether they opposed Federal Defendants' request to replace AR 050198 with a redacted version. Federal Defendants will not be punished for attempting to first resolve this matter without Court involvement. The Court finds, therefore, that Federal Defendants took reasonable steps to rectify their error.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal OR

Chapter: 27.1403
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Defendants argue that even if the parties' protective order supersedes Rule 502(b), MMO separately waived the privilege for Exhibit E (and by extension Exhibit F) by failing to object when defendants used Exhibit E during Dr. Canaday's deposition, allowing Dr. Canaday to testify about it for approximately ten minutes, and waiting seven days to claw it back. Defendants support their argument with a district court decision holding that 'failure to timely object to the introduction of an exhibit [during deposition] waives any privilege, regardless of the presence of a claw-back provision' that is 'intended to override the common law as to inadvertent disclosure.'"; "[T]he Court believes that assessing defendants' separate waiver argument would amount to performing a Rule 502(b)(3) analysis under a different name. Doing so would be inconsistent with the Court's determination that the parties intended for their protective order to override Rule 502(b). The Court therefore rejects defendants' separate waiver argument for Goroff Exhibits E and F.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL

Chapter: 27.1403
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Defendants argue that MMO's 'conduct in this case goes far beyond mere inadvertence' because MMO has produced -- without seeking to claw back -- approximately 360 documents that are marked privileged or confidential, that refer to MMO's attorneys by name, or that contain exchanges with MMO's in-house and outside counsel. Defs.' Mot. at 1-2, 5; see also Goroff Exs. 1-6. The Court rejects this argument because it conflates the inadvertence inquiry with the logically distinct question whether, under Rule 502(b)(2), the party took reasonable steps to prevent disclosure."; "Defendants also argue that MMO's disclosures were not inadvertent because MMO waited until a week after Dr. Canaday's deposition to claw back Exhibit E. The Court similarly rejects this argument because it conflates the inadvertence inquiry with the question whether, under Rule 502(b)(3), the party took prompt steps to rectify the error."; "MMO's attorney has filed a sworn declaration describing the circumstances and timeline of MMO's discovery of the disclosures. The Court is satisfied that MMO did not make a knowing choice to produce the documents and that the disclosures were inadvertent.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL

Chapter: 27.1403
Case Name: Raynor v. District of Columbia, Civ. A. No. 14-0750 (RC), 2018 U.S. Dist. LEXIS 23227 (D.D.C. Feb. 12, 2018)
(holding that a protective order did not apply to documents that had been inadvertently disclosed earlier, so the litigant could not rely on the protective order to claw-back the documents; "But more problematic is the District's failure to demonstrate, as it must under Rule 502(b), that it promptly took reasonable steps to rectify the errors that it has identified."; "The District contends, again in conclusory fashion, that it acted 'promptly' when it 'sent Plaintiff a clawback letter to rectify the error.'. . . This assertion is belied by the facts in this case. Many of the documents at issue were produced back in 2015. There is good reason to believe that the District either knew or should have known about any errors in those documents as the District itself referenced some of these documents in its early discovery responses and Plaintiff later used them in its Motion to Compel. Yet the District remained silent on the issue until July 24, 2017, when it issued its claw back letter. Although the District does not specifically indicate when it learned of the errors in each of the documents, it is at least reasonable under the facts of this case to expect the District to have both learned about the production of privileged material and to have acted on that information within one year of production. That is, the District can only reasonably argue that it has acted promptly in issuing its claw back letter with respect to documents that were produced within one year of the letter. Accordingly, the District has not been prompt with regard to any documents produced before July 24, 2016 and has consequently waived any privilege it might have claimed in those documents. Thus, Plaintiff need not return documents or information that was produced before this date, nor must it return any later-produced copies of the same information. Because there are so many different versions of the same communications spanning various Bates ranges, it is possible that this finding alone may resolve the dispute for all documents at issue.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal DC

Chapter: 27.1403
Case Name: Tech Pharmacy Services, LLC v. Alixa Rx LLC, Civ. A. No. 4:15-CV-766, 2017 U.S. Dist. LEXIS 130369 (E.D. Tex. Aug. 16, 2017)
("It is clear to the Court that neither Anthony nor Defendants intended to waive attorney-client privilege by disclosing the Disputed Documents. During Mr. Nguyen's deposition, Defendants learned of the inadvertently produced documents. Five days later, Defendants formally clawed back the Disputed Documents and asserted privilege. As such, Defendants timely sought protection of the inadvertently produced documents. Thus, after applying the above factors to the Disputed Documents, the Court does not find that Defendants or Anthony waived privilege.")

Case Date Jurisdiction State Cite Checked
2017-08-16 Federal TX

Chapter: 27.1403
Case Name: Lloyds of London Syndicate 2003 v. Fireman's Fund Ins. Co., Case No. 15-CV-2681-DDC-GLR, 2017 U.S. Dist. LEXIS 104130 (D. Kansas July 6, 2017)
(holding that the testifying expert's inadvertent disclosure of privileged documents to the plaintiff did not waive privilege protection under Rule 502; "Here, defense counsel affirmatively decided not to review Mr. Murphy's expert report. . . . Instead, defense counsel 'reasonably relied upon Mr. Murphy to cull out the protected documents' on his own because he had 'extensive experience in litigation in federal court' and defense counsel had briefed him about the matter. Id. Although counsel could have monitored Mr. Murphy's culling more closely, the court nonetheless finds counsel's actions reasonable."; "[D]efense counsel might have taken fuller precautions, but the court nonetheless concludes that counsel's actions did not waive work product protection. The court thus concludes that this first factor slightly weighs against waiver."; "[D]efense counsel notified plaintiff's counsel immediately when the inadvertent disclosure was revealed at the deposition."; "[T]his case involves only one inadvertently produced document. But, the court lacks information about the total number of documents defendant has produced during the entire litigation. Even without this information, this single inadvertent disclosure is minor."; "Defendant only disclosed the email to plaintiff's counsel. Indeed, plaintiff concedes that it has not shared the email with its expert or any other person. . . . Under these circumstances, no extensive disclosure has occurred."; "Also, plaintiff's counsel never questioned Mr. Murphy about the email after defense counsel timely notified them of the inadvertent disclosure.")

Case Date Jurisdiction State Cite Checked
2017-07-06 Federal KS

Chapter: 27.1403
Case Name: MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Ore. May 4, 2017)
(holding that the privilege protected communications between defendant café's lawyer and a former employee, even though the former employee might have been adverse to the former employer café, and even though they met at the café; also holding that the former employee's testimony that he had not disclosed to his lawyer some fact did not result in a waiver; "the Court agrees with Defendant that its counsel immediately objected to Plaintiff's attorney's question and that Virgen's single word response did not constitute a waiver. Defendant's attorney's timely objection constitutes a reasonable step to prevent and rectify inadvertent disclosure under Federal Rule of Evidence 502(b). Accordingly, the Court finds that Virgen's disclosure did not operate as a waiver.")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal OR

Chapter: 27.1403
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; "The day Plaintiff's counsel became aware of the disclosure, Plaintiff's counsel called and left a message for Kidd and Young, who were unavailable. The call was not immediately returned, so the next day Plaintiff's counsel sent Defense counsel a letter explaining the situation and demanding the immediate return of the Sutton File. On March 17, 2016, Kidd responded and requested that she be given until March 22, 2016, to respond to the letter because she was on vacation. Plaintiff's counsel immediately responded and expressed concerns of 'being accused of not acting immediately when we became aware of the inadvertent disclosure.'")

Case Date Jurisdiction State Cite Checked
2017-03-30 Federal MD

Chapter: 27.1403
Case Name: Irving Oil Ltd. v. ACE INA Ins., BCD-CV-09-35, 2015 Me. Super. LEXIS 72 (Me. April 18, 2015)
("Generally, when an insurer hires a licensed attorney to perform the investigation and handling of a policyholder's claim, the attorney-client privilege will only attach to communications made for the purpose of securing legal advice.")

Case Date Jurisdiction State Cite Checked
2015-04-18 State ME

Chapter: 27.1403
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; "Here, GAF's attorney represents that he first became aware of the inadvertent disclosure of GAF 745 and GAF 815 on February 2, 2015, while he was preparing for depositions in this case scheduled for the week of February 9, 2015. On the same day that he discovered the inadvertent disclosure, GAF's attorney informed Thermoset's attorney that these documents were protected by the attorney-client privilege and had been inadvertently produced. He additionally requested that Thermoset destroy the documents. February 2, 2015 email . . . . Clearly, GAF's attorney took prompt remedial action as soon as he became aware of the inadvertent disclosure. Hence, Rule 502(b)'s third element has also been satisfied.")

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

Chapter: 27.1403
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; "The sole Rule 502(b) factor weighing against a finding of waiver is the absence of substantial delay in attempting to 'claw back' the originally filed RICO Case Statement. The docket reflects that the revised version of the RICO Case Statement was filed on the same day as the original. However, the manner chosen by counsel to rectify the situation cannot be countenanced. It is apparent that an end-run around the Court and opposing counsel was attempted through an ex parte call to the Clerk of Court's docketing office by the secretary of LabMD's counsel.")

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

Chapter: 27.1403
Case Name: Dover v. British Airways, PLC (UK), CV 2012-5567 (RJD) (MDG), 2014 U.S. Dist. LEXIS 114121 (E.D.N.Y. Aug. 15, 2014)
("Six days after the deposition, plaintiffs again sought return of the protected documents.")

Case Date Jurisdiction State Cite Checked
2014-08-15 Federal NY

Chapter: 27.1403
Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)
(holding that the Dechert law firm waived its privilege by leaving privilege documents in offices it shared with the law firm of Coudert Brothers, which then went bankrupt; "As for the balance of the considerations traditionally invoked on a claim of inadvertent disclosure, they do not assist Dechert's motion. Although defendant asserts that it acted promptly to rectify the situation with the tapes -- dating the disclosure of the issue to its attorney in February 2014 -- that is not the case. As noted, Dechert had to know back in 2005, or at the latest in January 2006, that it was leaving the security of its data to an unknown fate when it left the server in the Paris office without cleansing it.")

Case Date Jurisdiction State Cite Checked
2014-07-31 Federal NY

Chapter: 27.1403
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; "Mr. Phillips contacted Pick's counsel almost immediately after learning of the inadvertent disclosure. Pick served his supplemental answer to Interrogatory Number 28 by email on March 25, 2014, at 9:01 a.m., indicating that he intended to rely on the Communication at trial. . . . At 9:35 a.m., Mr. Phillips advised Pick's counsel that the Communication was privileged and had been inadvertently produced. He asked that it be destroyed. . . . While the error was not rectified until two months after the inadvertent disclosure, it was rectified almost immediately after Mr. Phillips learned of the error. This factor weighs in favor of non-waiver.")

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

Chapter: 27.1403
Case Name: Georgia-Pacific LLC v. OfficeMax Inc., No. C 12-02797 LB, 2014 U.S. Dist. LEXIS 33616, at *10, *14 (N.D. Cal. Feb. 28, 2014)
(analyzing a claw-back agreement; "On June 10, 2013, Georgia-Pacific produced to OfficeMax a disc containing about 17,000 pages of documents. Eighteen days later, on June 28, 2013, Georgia-Pacific notified OfficeMax in writing that it 'had just discovered that its document vendor inadvertently produced' 503 privileged. Georgia-Pacific did not specifically identify, by bates number, the privileged documents at this time. Instead, Georgia-Pacific asked OfficeMax to return the entire disc. OfficeMax refused to return the entire disc and instead told Georgia-Pacific that it needed to specifically identify the privileged documents to be returned. About 3.5 months later, on October 11, 2013, Georgia-Pacific specifically identified the privileged documents by including them on a privilege log and provided OfficeMax with a replacement disc that omitted the privileged documents. Georgia-Pacific now wants to 'clawback' the privileged documents that OfficeMax has not returned or destroyed."; citing the claw-back agreement, which uses the "inadvertent" and "prompt" standards, and allows the receiving party to retain a copy of any challenged documents pending a court ruling; "[T]he court finds Georgia-Pacific's original notice was prompt. It should have identified its specific bates ranges earlier that it did, and it also did not need to wait to send its privilege log, but the court does not construe this as a waiver of any applicable privilege.")

Case Date Jurisdiction State Cite Checked
2014-02-28 Federal CA B 8/14

Chapter: 27.1403
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 Jurisdiction State Cite Checked
2014-02-10 Federal NY B 7/14

Chapter: 27.1403
Case Name: Skynet Elec. Co., Ltd. v. Flextronics Int'l, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372, at *13 (N.D. Cal. Dec. 16, 2013)
(discussing the different waiver standards for privilege and work product protection; finding that disclosure to a Taiwanese "patent attorney" did not waive work product protection, although those "patent attorneys" were not actually lawyers; "Plaintiff provides nearly four pages of its opposition detailing the various steps it took to ensure that protected documents were not turned over during the discovery process. . . . In total, Skynet's attorneys reviewed over 36,397 documents. . . . Despite SKY003200-3203 being inadvertently turned over to defendants, plaintiff has shown that its efforts were in compliance with FRE 502(b). Within two hours of being altered that SKY003200-3203 had been turned over to defendants, Skynet formally asserted a claim of immunity over the document and requested its return. . . . Accordingly, each provision of FRE 502(b) has been met.")

Case Date Jurisdiction State Cite Checked
2013-12-16 Federal CA B 5/14

Chapter: 27.1403
Case Name: Hanson v. Wells Fargo Home Mortg., Case No. C13-0939JLR, 2013 U.S. Dist. LEXIS 149752, at *18 (W.D. Wash. Oct. 17, 2013)
(finding that the inadvertent disclosure of privileged communications did not result in a waiver; "[U]pon discovering the disclosure, Wells Fargo's counsel immediately contacted counsel for Quality and the Hansons requesting they return the inadvertently disclosed documents. . . . Wells Fargo's counsel then filed its motion to seal within two days of discovering the disclosure. . . . This is sufficient to satisfy the standard.")

Case Date Jurisdiction State Cite Checked
2013-10-17 Federal WA B 5/14

Chapter: 27.1403
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 Jurisdiction State Cite Checked
2013-08-22 Federal IL B 4/14

Chapter: 27.1403
Case Name: United States v. Nunez, No. 12 Cr. 778-2, 2013 U.S. Dist. LEXIS 116145, at *7-8 (S.D.N.Y. Aug. 16, 2013)
(analyzing the effect of the government's seizure of documents from defendant; holding that the defendant's new lawyer could seek return of the documents, although the earlier defendant's earlier lawyer had not sought their return for over ninety days after their seizure; "[C]ourts generally allow a reasonable amount of time to claw back inadvertently disclosed documents, measured in days from the time that the disclosure is discovered, if not less.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal NY B 4/14

Chapter: 27.1403
Case Name: United States v. Nunez, No. 12 Cr. 778-2, 2013 U.S. Dist. LEXIS 116145, at *10-11 (S.D.N.Y. Aug. 16, 2013)
(analyzing the effect of the government's seizure of documents from defendant; holding that the defendant's new lawyer could seek return of the documents, although the earlier defendant's earlier lawyer had not sought their return for over ninety days after their seizure; "Nunez's new counsel promptly raised the privilege issue at its first court appearance in this matter, approximately two weeks after its initial appointment. Nunez's newly appointed counsel was entitled to some modicum of time to familiarize itself with the facts of this case, and with the disclosures in particular, before determining how to proceed. Waiting two weeks until a scheduled conference with the Court was not excessive.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal NY B 4/14

Chapter: 27.1403
Case Name: Surfcast, Inc. v. Microsoft Corp., No. 2:12-cv-333-JAW, 2013 U.S. Dist. LEXIS 111417, at *13 (D. Me. Aug. 7, 2013)
(holding that the privilege can protect emails sent to a lawyer directly, with a copy to a nonlawyer; "[T]he fact that Exhibit 24 was potentially privileged was evident from the face of the document itself, and, combined with the fact that the disclosing party allowed it to be used at a deposition without objection, resulted in a waiver of the privilege.")

Case Date Jurisdiction State Cite Checked
2013-08-07 Federal ME B 4/14

Chapter: 27.1403
Case Name: Prowess, Inc. v. RaySearch Labs. AB, Civ. No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 67047, at *12-13 (D. Md. May 9, 2013)
(applying Rule 502 and finding that an inadvertent production of documents does not cause a waiver; "Prowess took reasonable steps to rectify its production error. Prowess first learned that it had produced the documents on January 14, 2013, when Defendants filed their motion. Prowess contacted Defendants the next day, and informed Defendants that the documents were privileged and inadvertently produced. . . . Prowess then investigated the oversight, and again reviewed the documents produced for privileged material. . . . Defendants argue that Prowess failed to take reasonable steps to rectify the error because Prowess did not attempt to claw back the documents until after Defendants filed their motion. However, as the advisory committee notes make clear, Rule 502(b) '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.' Prowess took reasonable steps to rectify its error immediately upon becoming aware of the mistake, and has not, therefore, waived the privilege or protection. Defendants must return the two disputed documents to Prowess.")

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

Chapter: 27.1403
Case Name: Smith v. Allstate Ins. Co., Civ. A. No. 3:11 CV 165, 2012 U.S. Dist. LEXIS 160152, at *8-10 (W.D. Pa. Nov. 8, 2012)
(holding that an inadvertent production does not result in a waiver; "Upon discovery of the inadvertent disclosures, Allstate immediately brought the issue to the attention of Plaintiff's counsel by notifying Plaintiff's counsel of the inadvertent disclosure prior to the commencement of the depositions that were set to begin on the that date . . .. Allstate engaged in a conversation with Plaintiff's counsel, the conclusion of which Allstate appears to have understood to result an oral agreement that Plaintiff's counsel would not use the subject documents. . . . Additionally, when Plaintiff used the information contained in the subject documents in her Responsive Concise Statement of Material Facts . . ., Allstate promptly objected to this use.")

Case Date Jurisdiction State Cite Checked
2012-11-08 Federal PA B 7/13

Chapter: 27.1403
Case Name: Clark Cnty. v. Jacobs Facilities, Inc., Case No. 2:10 cv 00194 LRH PAL, 2012 U.S. Dist. LEXIS 141651, at *29, *35 (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); "When Jacobs discovered in 2005 that the mitigation plan had been produced it promptly wrote to counsel for Clark County and counsel for AF Construction and Fireman's Fund to protect the privilege and rectify the error."; ultimately holding that the inadvertent disclosure of privileged documents did not result in a waiver)

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

Chapter: 27.1403
Case Name: King Pharms., Inc. v. Purdue Pharma L.P., Case No. 1:08CV00050, 2010 U.S. Dist. LEXIS 54407, at *4 (W.D. Va. June 2, 2010)
(holding that under Federal Rule of Evidence 502 a litigant's inadvertent disclosure did not result in a waiver; "Once the disclosure was discovered during the deposition, counsel for Purdue promptly notified opposing counsel of the claim and the basis for it, in accord with Federal Rule of Civil Procedure 26(b)(5)(B).")

Case Date Jurisdiction State Cite Checked
2010-06-02 Federal VA B 4/13

Chapter: 27.1403
Case Name: Lazar v. Mauney, Civ. A. No. 2:99-CV-0062-WCO, 2000 U.S. Dist. LEXIS 4473 (N.D. Ga. March 24, 2000)
(granting a motion to strike defendant's use of an inadvertently produced document, because there had been no waiver; "On October 7, 1999, Ms. Anderson became aware that part of the documents had to be sent to an off-site copy service because the on-site copy service was consumed with a rush copying job. Delivery to defense counsel was delayed until Friday, October 8, 1999. When she received both sets of materials, Ms. Anderson simultaneously reviewed both sets, checking for the unintentional inclusion of privileged material and confirming that the two sets were identical. Nine-hundred and ninety-six pages were then delivered to defense counsel with a cover letter stating that the privilege log would arrive shortly under separate cover."; "The following Monday, October 11, 1999, while filing the duplicate copies of produced documents, Ms. Anderson discovered that three pages of attorney-client privileged correspondence, two of which constituted the letter, had inadvertently been improperly copied and delivered to defense counsel. Ms. Anderson notified defense counsel of the disclosure by letter which was faxed and hand delivered that day. The letter stated that three pages of attorney-client privileged correspondence were 'inadvertently produced' and that 'plaintiff does not waive the privilege as to the documents, or any privileged documents, and requests their immediate return.'. . . Anderson also left a voicemail with both defense attorneys of record, Thomas Bart Gary and Jefferson M. Allen."; "[T]he court finds that plaintiff did not waive the attorney-client privilege in regard to the three pages inadvertently disclosed by his counsel. The inadvertent disclosure of plaintiff's counsel does not waive the plaintiff's attorney-client privilege because the privilege can be waived only by the intentional relinquishment of the privilege by the client.")

Case Date Jurisdiction State Cite Checked
2000-03-24 Federal GA

Chapter: 27.1404
Case Name: Ranger Construction Industries, Inc. v. Allied World National Assurance Co., Civ. No. 17-81226-CIV-Marra/Matthewman, 2019 U.S. Dist. LEXIS 18617, at *19 (S.D. Fla. Feb. 5, 2019)
April 17, 2019 (PRIVILEGE POINTS)

"Can The Flu Affect A Waiver Analysis?"

Fed R. Evid. 502 adopts the earlier majority common law view, finding that the inadvertent production of documents does not waive privilege or work product protection if: (1) it was inadvertent; (2) the protection holder "took reasonable steps to prevent disclosure"; and (3) "the holder promptly took reasonable steps to rectify the error." In analyzing the last factor, courts understandably assess the context. Most if not all courts start the rectification clock ticking when the holder learns of the inadvertent disclosure. After that, the holder must act quickly.

In Ranger Construction Industries, Inc. v. Allied World National Assurance Co., the defendant inadvertently included several privileged documents in a December 20 production – which the court helpfully noted was "right before the Christmas holiday." Civ. No. 17-81226-CIV-Marra/Matthewman, 2019 U.S. Dist. LEXIS 18617, at *19 (S.D. Fla. Feb. 5, 2019). Eight days later, plaintiff's lawyer alerted her counterpart that the production included possibly privileged documents. The court acknowledged that plaintiff's lawyer had not provided those documents' Bates numbers, but explained that "she was ill with the flu over the holidays and ultimately hospitalized, which certainly accounts for any alleged deficiency in the letter." Id. at *20. Because "Defendant's counsel's office was closed for the holidays until January 2," the lawyers did not confer until that day – at which time defendant's lawyer acknowledged the inadvertence, and sought the documents' return. Id. at *19. The court ultimately concluded that defendant's lawyer "took reasonable steps to rectify the error" – thus avoiding a privilege waiver despite the nearly two-week delay since the production. Id. at *21.

Not all courts would be this generous, so litigants who inadvertently produce protected documents should immediately alert the recipient and at least demand their return or destruction.

Case Date Jurisdiction State Cite Checked
2019-02-05 Federal FL
Comment:

key case


Chapter: 27.1404
Case Name: Audubon Society of Portland v. Zinke, Case No. 1:17-cv-00069-CL (lead), 2018 U.S. Dist. LEXIS 53570 (D. Ore. March 27, 2018)
(holding that the federal government's inadvertent disclosure resulted in a waiver, which triggered a subject matter waiver; "Here, Federal Defendants asserted attorney-client privilege over the comment at issue within two weeks and filed this present motion within thirty-five days of initially being made aware of the disclosure. This timeframe stands in contrast with the seven-week delay deemed too long in Mycone Dental Supply Co v. Creative Nail Design Inc., No. C-12-00747-RS, 2013 U.S. Dist. LEXIS 126336, 2013 WL 4758053, at *3 (N.D. Cal. Sept. 4, 2013). Moreover, it is evident from the e-mail chain, which was attached as an exhibit to Federal Defendants' motion, that part of the delay occurred because counsel for Federal Defendants had reached out to, and were waiting for replies from, the numerous attorneys involved in this matter as to whether they opposed Federal Defendants' request to replace AR 050198 with a redacted version. Federal Defendants will not be punished for attempting to first resolve this matter without Court involvement. The Court finds, therefore, that Federal Defendants took reasonable steps to rectify their error.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal OR

Chapter: 27.1404
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Defendants argue that MMO's 'conduct in this case goes far beyond mere inadvertence' because MMO has produced -- without seeking to claw back -- approximately 360 documents that are marked privileged or confidential, that refer to MMO's attorneys by name, or that contain exchanges with MMO's in-house and outside counsel. Defs.' Mot. at 1-2, 5; see also Goroff Exs. 1-6. The Court rejects this argument because it conflates the inadvertence inquiry with the logically distinct question whether, under Rule 502(b)(2), the party took reasonable steps to prevent disclosure."; "Defendants also argue that MMO's disclosures were not inadvertent because MMO waited until a week after Dr. Canaday's deposition to claw back Exhibit E. The Court similarly rejects this argument because it conflates the inadvertence inquiry with the question whether, under Rule 502(b)(3), the party took prompt steps to rectify the error."; "MMO's attorney has filed a sworn declaration describing the circumstances and timeline of MMO's discovery of the disclosures. The Court is satisfied that MMO did not make a knowing choice to produce the documents and that the disclosures were inadvertent.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL

Chapter: 27.1404
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Defendants suggest that even if MMO's disclosures were inadvertent, MMO did not comply with the "timing provision of the Protective Order's claw back clause" because MMO had discovered the first inadvertent disclosures by October 3, 2017 but did not make made its last claw-back request until December 15, 2017. . . . The protective order, however, does not state that once the producing party discovers an inadvertent production, it has only twenty business days to give notice of every subsequent inadvertent production. Rather, it simply requires that the producing party give notice 'within twenty (20) business days of discovering the inadvertent production.'. . . MMO made a claw-back request for each disputed document within twenty business days of discovering that document's disclosure. It complied with the timing provision in the protective order."; "Defendants also suggest that MMO did not comply with the protective order because it failed to timely serve a privilege log. But nothing in the protective order suggests that failure to serve a privilege log -- or late service of a log -- waives privilege.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL

Chapter: 27.1404
Case Name: Raynor v. District of Columbia, Civ. A. No. 14-0750 (RC), 2018 U.S. Dist. LEXIS 23227 (D.D.C. Feb. 12, 2018)
(holding that a protective order did not apply to documents that had been inadvertently disclosed earlier, so the litigant could not rely on the protective order to claw-back the documents; "But more problematic is the District's failure to demonstrate, as it must under Rule 502(b), that it promptly took reasonable steps to rectify the errors that it has identified."; "The District contends, again in conclusory fashion, that it acted 'promptly' when it 'sent Plaintiff a clawback letter to rectify the error.'. . . This assertion is belied by the facts in this case. Many of the documents at issue were produced back in 2015. There is good reason to believe that the District either knew or should have known about any errors in those documents as the District itself referenced some of these documents in its early discovery responses and Plaintiff later used them in its Motion to Compel. Yet the District remained silent on the issue until July 24, 2017, when it issued its claw back letter. Although the District does not specifically indicate when it learned of the errors in each of the documents, it is at least reasonable under the facts of this case to expect the District to have both learned about the production of privileged material and to have acted on that information within one year of production. That is, the District can only reasonably argue that it has acted promptly in issuing its claw back letter with respect to documents that were produced within one year of the letter. Accordingly, the District has not been prompt with regard to any documents produced before July 24, 2016 and has consequently waived any privilege it might have claimed in those documents. Thus, Plaintiff need not return documents or information that was produced before this date, nor must it return any later-produced copies of the same information. Because there are so many different versions of the same communications spanning various Bates ranges, it is possible that this finding alone may resolve the dispute for all documents at issue.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal DC

Chapter: 27.1404
Case Name: Tech Pharmacy Services, LLC v. Alixa Rx LLC, Civ. A. No. 4:15-CV-766, 2017 U.S. Dist. LEXIS 130369 (E.D. Tex. Aug. 16, 2017)
("It is clear to the Court that neither Anthony nor Defendants intended to waive attorney-client privilege by disclosing the Disputed Documents. During Mr. Nguyen's deposition, Defendants learned of the inadvertently produced documents. Five days later, Defendants formally clawed back the Disputed Documents and asserted privilege. As such, Defendants timely sought protection of the inadvertently produced documents. Thus, after applying the above factors to the Disputed Documents, the Court does not find that Defendants or Anthony waived privilege.")

Case Date Jurisdiction State Cite Checked
2017-08-16 Federal TX

Chapter: 27.1404
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; "[T]he Court finds that the government learned or should have learned of the disclosure at Agent Johnson's deposition on September 16, 2014, some five months before it asserted the inadvertent disclosure of privileged documents."; "The delay of five months between Agent Johnson's deposition and the government's assertion of privilege weighs in favor of a finding of waiver, as the government was put on notice but did not timely take action to rectify its error.")

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

Chapter: 27.1404
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 parties agree that there was no measurable delay on Ford's part in attempting to rectify the error once the mistake was known. Plaintiffs suggest that Ford should have realized its error sooner in view of some of its discovery requests, but this particular factor focuses on the actions of the producing party after it discovers the inadvertent disclosure."; "Here, Ford's counsel discovered the potential inadvertent disclosure of the Logel document on a Sunday evening. The following day, co-counsel confirmed the error and immediately sought clawback of the document by written notification and request to all known recipients of the BOA documents. Therefore, this factor weighs in favor of preserving the privilege.")

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

Chapter: 27.1404
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; "The sole Rule 502(b) factor weighing against a finding of waiver is the absence of substantial delay in attempting to 'claw back' the originally filed RICO Case Statement. The docket reflects that the revised version of the RICO Case Statement was filed on the same day as the original. However, the manner chosen by counsel to rectify the situation cannot be countenanced. It is apparent that an end-run around the Court and opposing counsel was attempted through an ex parte call to the Clerk of Court's docketing office by the secretary of LabMD's counsel.")

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

Chapter: 27.1404
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; "Several hours after LabMD filed the RICO Case Statement, an 'Errata' containing an amended version of the RICO Case Statement was filed on the docket at ECF No. 19. The amendment removes any reference to the contents of Exhibits P and Q, and indicates that the documents have been 'Removed.' The docket entry further states: 'Reason for Correction: Inadvertent filing of privileged draft.' An entry by a Clerk's Office staff member notes that ECF No. 18 has been removed from public view. In pertinent part, the Errata is an amended version of the RICO Case Statement and appears to revise LabMD's allegations as to how and when it learned of Defendants' alleged fraudulent concealment.")

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

Chapter: 27.1404
Case Name: Northrop Grumman Sys. Corp. v. United States, No. 12-286C, 2015 U.S. Claims 235 (Fed. Cl. March 9, 2015)
(finding that the government's inadvertent production did not waive privilege; "Nor do we believe that the delay in fully invoking the claw back provision from November 26, 2013, to June 12, 2014, warrants forfeiture of the privilege. If nothing had been done by the government until June 12, we would be inclined to agree. In fact, government counsel sent six letters or emails regarding inadvertent production, beginning on December 19, 2013, and concluding with the comprehensive request in June 2014. During that period of time, the government undertook a more comprehensive document review of the failed efforts of 2013. While plaintiff should have been kept better informed of the reasons for delay, we cannot hold that this amount of time vitiates the government's right to assert privilege.")

Case Date Jurisdiction State Cite Checked
2015-03-09 Federal Other

Chapter: 27.1404
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; "Without an explanation for the over two-month delay in taking steps to remedy the alleged inadvertent disclosure, the Court cannot find that Defendants promptly took reasonable steps to remedy the disclosure. Therefore, the second factor as to the amount of time taken to remedy the error also weighs heavily in favor of finding waiver.")

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

Chapter: 27.1404
Case Name: J.N. and J.N. v. South Western School Dist., Civ. No. 1:14-CV-0974, 2014 U.S. Dist. LEXIS 134346 (M.D. Pa. Sept. 24, 2014)
(holding that an inadvertent production of a privileged document did not result in a waiver; "In terms of the steps taken to rectify the inadvertent disclosure, the District first requested that plaintiffs destroy the privileged communications approximately four days after the disclosure and memorialized its position via letter several weeks thereafter. . . . The District submitted a motion in limine to prevent the introduction of Dr. Renehan's email at the due process hearing and consistently objected to any use of the privileged portion of the email exchange during the hearing. This factor favors the District.")

Case Date Jurisdiction State Cite Checked
2014-09-24 Federal PA

Chapter: 27.1404
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; "With respect to the third factor, it was not until just prior to the scheduled depositions that the defendants advised the plaintiffs that it considered some of the documents produced by E&M to be privileged. This objection by the defendants was almost five months after the date of the subpoena, seven weeks after plaintiff's counsel had reviewed the documents at E&M's counsel's office, and almost three weeks after the plaintiffs had provided copies of the documents to the defendants.")

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

Chapter: 27.1404
Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)
(holding that the Dechert law firm waived its privilege by leaving privilege documents in offices it shared with the law firm of Coudert Brothers, which then went bankrupt; "As for the balance of the considerations traditionally invoked on a claim of inadvertent disclosure, they do not assist Dechert's motion. Although defendant asserts that it acted promptly to rectify the situation with the tapes -- dating the disclosure of the issue to its attorney in February 2014 -- that is not the case. As noted, Dechert had to know back in 2005, or at the latest in January 2006, that it was leaving the security of its data to an unknown fate when it left the server in the Paris office without cleansing it.")

Case Date Jurisdiction State Cite Checked
2014-07-31 Federal NY

Chapter: 27.1404
Case Name: Cormack v. United States, No. 13-232C, 2014 U.S. Claims LEXIS 664 (Fed. Cl. July 18, 2014)
("Here, Systems's counsel notified Mr. Cormack's counsel within hours of receiving the filing containing the e-mail at issue as an exhibit and filed a motion seeking to claw back the document and strike the relevant filing within four days.")

Case Date Jurisdiction State Cite Checked
2014-07-18 Federal Other

Chapter: 27.1404
Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *34-35 (S.D.N.Y. July 2, 2014)
("Above all, it is Doe's inaction following Investigator's disclosure that waives the protection covering Investigator's file. Investigator informed Lawyer about her meeting with the government and her disclosure of the file on the day after the meeting. . . . Lawyer affirmed that he was 'stunned' to learn of Investigator's disclosures. . . . Despite his shock on February 12, Lawyer waited over two weeks, until March 1, 2013, before contacting the government about this meeting. . . . And after Doe's agreement with the government fell apart in early May 2013, Doe's attorneys waited several weeks before filing the instant motion to quash. These delays are unacceptable given the perceived gravity of Investigator's disclosures. Courts have held that twelve days, even six days, are too long to wait to avoid waiving privilege.")

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

Chapter: 27.1404
Case Name: Simpson v. City of Indianapolis, No. 1:13-cv-791-RLY-TAB, 2014 U.S. Dist. LEXIS 76982 (S.D. Ind. June 6, 2014)
(analyzing a situation in which a lawyer's legal opinion was certainly produced to a plaintiff's lawyer; finding a waiver because the lawyer did not take any steps for two years to retrieve the document)

Case Date Jurisdiction State Cite Checked
2014-06-06 Federal IN

Chapter: 27.1404
Case Name: Educ. Assistance Found. for Descendants of Hungarian Immigrants in the Performing Arts, Inc. v. United States, Civ. A. No. 11-1573 (RBW), 2014 U.S. Dist. LEXIS 40579, at *26-27, *29-30 (D.D.C. Mar. 27, 2014)
(analyzing the waiver effect of a privileged document ending up with the IRS, although no one knew how the IRS obtained it; finding a waiver, because the document's owner did not immediately take steps to retrieve the document upon discovering that the IRS possessed it; "The Court disagrees that these half-hearted and untimely attempts to assert the privilege are sufficient to preserve any claim of privilege as to the document. Barrett Weinberger first learned that the IRS possessed a copy of the Weinberger-Bolden Letter when it enclosed a copy of the letter in its April 20, 2009 Information Document Request, but took no action whatsoever to assert the privilege until January 11, 2010, over eight months later. Even then, the Foundation did not make any attempt to recover the Weinberger-Bolden Letter, but merely asserted its position that the document was protected by the privilege and thus 'should be excised and not relied upon.' . . . Neither the Foundation nor the Schaller Estate beneficiaries demanded the return of the document until December 1, 2010, nearly two years after Weinberger learned that the IRS possessed it. Such an inordinate delay in action to recover the document is inconsistent with the confidentiality objective which underlies the attorney-client privilege."; "While the Foundation and the beneficiaries of the Schaller Estate have raised the claim of privilege on several occasions since learning of the disclosure of the Weinberger-Bolden Letter in April 2009, long periods of inaction have followed most of the attempts to recover the document. . . . [T]he IRS consistently ignored the Foundation's and the Estate's occasional efforts to retrieve the Weinberger-Bolden Letter. Instead of taking additional steps to recover the letter, the alleged privilege holders allowed the letter to remain with the IRS with full knowledge that the agency continued to use it without limitation.")

Case Date Jurisdiction State Cite Checked
2014-03-27 Federal DC B 8/14

Chapter: 27.1404
Case Name: Georgia-Pacific LLC v. OfficeMax Inc., No. C 12-02797 LB, 2014 U.S. Dist. LEXIS 33616, at *10, *14 (N.D. Cal. Feb. 28, 2014)
(analyzing a claw-back agreement; "On June 10, 2013, Georgia-Pacific produced to OfficeMax a disc containing about 17,000 pages of documents. Eighteen days later, on June 28, 2013, Georgia-Pacific notified OfficeMax in writing that it 'had just discovered that its document vendor inadvertently produced' 503 privileged. Georgia-Pacific did not specifically identify, by bates number, the privileged documents at this time. Instead, Georgia-Pacific asked OfficeMax to return the entire disc. OfficeMax refused to return the entire disc and instead told Georgia-Pacific that it needed to specifically identify the privileged documents to be returned. About 3.5 months later, on October 11, 2013, Georgia-Pacific specifically identified the privileged documents by including them on a privilege log and provided OfficeMax with a replacement disc that omitted the privileged documents. Georgia-Pacific now wants to 'clawback' the privileged documents that OfficeMax has not returned or destroyed."; citing the claw-back agreement, which uses the "inadvertent" and "prompt" standards, and allows the receiving party to retain a copy of any challenged documents pending a court ruling; "[T]he court finds Georgia-Pacific's original notice was prompt. It should have identified its specific bates ranges earlier that it did, and it also did not need to wait to send its privilege log, but the court does not construe this as a waiver of any applicable privilege.")

Case Date Jurisdiction State Cite Checked
2014-02-28 Federal CA B 8/14

Chapter: 27.1404
Case Name: Skynet Elec. Co., Ltd. v. Flextronics Int'l, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372, at *13 (N.D. Cal. Dec. 16, 2013)
(discussing the different waiver standards for privilege and work product protection; finding that disclosure to a Taiwanese "patent attorney" did not waive work product protection, although those "patent attorneys" were not actually lawyers; "Plaintiff provides nearly four pages of its opposition detailing the various steps it took to ensure that protected documents were not turned over during the discovery process. . . . In total, Skynet's attorneys reviewed over 36,397 documents. . . . Despite SKY003200-3203 being inadvertently turned over to defendants, plaintiff has shown that its efforts were in compliance with FRE 502(b). Within two hours of being altered that SKY003200-3203 had been turned over to defendants, Skynet formally asserted a claim of immunity over the document and requested its return. . . . Accordingly, each provision of FRE 502(b) has been met.")

Case Date Jurisdiction State Cite Checked
2013-12-16 Federal CA B 5/14

Chapter: 27.1404
Case Name: Jefferson v. Dominion Holdings, Inc., C.A. No. 8663-VCN, 2013 Del. Ch. LEXIS 301, at *8 (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; "That, however, does not end the inquiry. Counsel for Source4 [defendant] allowed the use of the privileged information during the Siadak deposition without asserting the privilege when the documents formed the basis of the questioning. Was that failure a waiver or does it somehow undercut the assertion of inadvertence? Had too much time elapsed? The privilege issue was brought to the attention of Jefferson's counsel at the next break in Siadak's deposition. That was not a delay that should defeat the privilege or the purposes of the Confidentiality Stipulation. Had the concern not been raised until after completion of the deposition, the result might be different." (footnote omitted))

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

Chapter: 27.1404
Case Name: Mycone Dental Supply Co. Inc. v. Creative Nail Design Inc., No. C-12-00747-RS (DMR), 2013 U.S. Dist. LEXIS 126336, at *8-9, *10-12 (N.D. Cal. Sept. 4, 2013)
(holding that a third party could not claw back documents because it did not comply with the protective order's deadline for doing so; "The court denies Gel's [third party] clawback request because Gel did not promptly take reasonable steps to rectify the error. Gel took 49 days to send a clawback letter after it discovered the disclosure of at least one of the disputed documents during the Rule 30(b)(6) deposition. Gel has offered a sequence of excuses for this delay, including that Gel sought a second opinion from another attorney, that Gel's 30(b)(6) witness became less available even as she insisted on reviewing the entire production document by document, that Hoffman, one attorney in a two-person firm, was on vacation or busy with other matters, and that no other deadlines were upcoming in this litigation. . . . These excuses do not justify Gel's seven-week delay in sending a recall letter -- at the least, Gel should have recalled the document that was used in the deposition immediately after the deposition and then conducted a more thorough and timely investigation into the rest of the production after the initial clawback request." (footnote omitted); "Gel argues that the delay should be measured starting from when counsel finally confirmed, after investigation, that the documents were privileged, not from the date of Lilley's [patent owner] deposition. . . . Here, Gel took 45 days to research its assertion of privilege before sending its clawback letter. This research covered three or four essentially identical sentences in nine essentially identical form transmittal letters, the author of which was obvious on the face of the letters. Under these circumstances, Gel's delay neither meets the requirements of the protective order nor the requirement under Rule 502(b) that the producing party take 'reasonable steps to rectify the error' of the inadvertent disclosure.")

Case Date Jurisdiction State Cite Checked
2013-09-04 Federal CA B 4/14

Chapter: 27.1404
Case Name: United States v. Nunez, No. 12 Cr. 778-2, 2013 U.S. Dist. LEXIS 116145, at *10-11 (S.D.N.Y. Aug. 16, 2013)
(analyzing the effect of the government's seizure of documents from defendant; holding that the defendant's new lawyer could seek return of the documents, although the earlier defendant's earlier lawyer had not sought their return for over ninety days after their seizure; "Nunez's new counsel promptly raised the privilege issue at its first court appearance in this matter, approximately two weeks after its initial appointment. Nunez's newly appointed counsel was entitled to some modicum of time to familiarize itself with the facts of this case, and with the disclosures in particular, before determining how to proceed. Waiting two weeks until a scheduled conference with the Court was not excessive.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal NY B 4/14

Chapter: 27.1404
Case Name: United States v. Nunez, No. 12 Cr. 778-2, 2013 U.S. Dist. LEXIS 116145, at *7-8 (S.D.N.Y. Aug. 16, 2013)
(analyzing the effect of the government's seizure of documents from defendant; holding that the defendant's new lawyer could seek return of the documents, although the earlier defendant's earlier lawyer had not sought their return for over ninety days after their seizure; "[C]ourts generally allow a reasonable amount of time to claw back inadvertently disclosed documents, measured in days from the time that the disclosure is discovered, if not less.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal NY B 4/14

Chapter: 27.1404
Case Name: Jo Ann Howard & Assocs., P.C. v. Cassity, Case No. 4:09CV-01252 ERW, 2013 U.S. Dist. LEXIS 101135, at *21 (E.D. Miss. July 19, 2013)
(finding that an inadvertent production of a document resulted in a waiver; "Defendants unreasonably waited eighteen months to attempt to claw back the timeline.")

Case Date Jurisdiction State Cite Checked
2013-07-19 Federal MS B 4/14

Chapter: 27.1404
Case Name: Jo Ann Howard & Assocs., P.C. v. Cassity, Case No. 4:09CV-01252 ERW, 2013 U.S. Dist. LEXIS 101135, at *21 (E.D. Miss. July 19, 2013)
(finding that an inadvertent production of a document resulted in a waiver; "Plaintiffs disclosed the existence of the Timeline to all parties in their January 30, 2013, requests for production to Hollywood Forever [defendant], and Hollywood Forever answered the document requests two months later without claiming the Timeline was privileged.")

Case Date Jurisdiction State Cite Checked
2013-07-19 Federal MS B 4/14

Chapter: 27.1404
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 *19 (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; "BNP began reviewing its extensive production of documents upon receiving BoA's October 17 Letter detailing the relevant documents. . . . BNP's counsel notified BoA's counsel during a meet and confer on October 23 that it was working to compile a clawback list, which would be provided no later than the following day. Courts have recognized similar efforts as prompt and reasonable.")

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

Chapter: 27.1404
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; "This Court is persuaded that Prowess's production of the documents was inadvertent. Instead of producing certain documents within a sub-folder as intended, Prowess mistakenly selected the entire sub-folder for production. . . . Moreover, upon learning of the production, Prowess immediately contacted Defendants and informed them that the production was inadvertent.")

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

Chapter: 27.1404
Case Name: Skansgaard v. Bank of America, Case No. C11-0988 RJB, 2013 U.S. Dist. LEXIS 48176, at *9 (W.D. Wash. Mar. 6, 2013)
("[T]he courts have emphasized that claw back requests should be made immediately, with delays of even a few weeks determined to be too long, much less nearly two months.")

Case Date Jurisdiction State Cite Checked
2013-03-06 Federal WA B 3/14

Chapter: 27.1404
Case Name: Samaritan Alliance, LLC v. Ken. (In re Samaritan Alliance), Case No. 07-50735, Adv. No. 12-5009, 2013 Bankr. LEXIS 671, at *9-10 (E.D. Ken. Feb. 20, 2013)
("[T]he Cabinet [Kentucky Cabinet for Health & Family Services] acted too slowly. The Cabinet received an email from Samaritan's counsel on November 21, 2012 contending that the Cabinet had waived its attorney-client privilege and basing this contention on the disclosed Emails. Samaritan thus alerted the Cabinet as to the disclosure of the potentially privileged Emails. But the Cabinet did not request the return of the Emails until December 4, 2012 -- a day after they had been used as an exhibit in the Johnson deposition without objection. Given these circumstances, the Cabinet's delay in requesting the return of the Emails weighs toward a finding of waiver.")

Case Date Jurisdiction State Cite Checked
2013-02-20 Federal KY B 2/14

Chapter: 27.1404
Case Name: Smith v. Allstate Ins. Co., Civ. A. No. 3:11 CV 165, 2012 U.S. Dist. LEXIS 160152, at *8-10 (W.D. Pa. Nov. 8, 2012)
(holding that an inadvertent production does not result in a waiver; "Upon discovery of the inadvertent disclosures, Allstate immediately brought the issue to the attention of Plaintiff's counsel by notifying Plaintiff's counsel of the inadvertent disclosure prior to the commencement of the depositions that were set to begin on the that date . . .. Allstate engaged in a conversation with Plaintiff's counsel, the conclusion of which Allstate appears to have understood to result an oral agreement that Plaintiff's counsel would not use the subject documents. . . . Additionally, when Plaintiff used the information contained in the subject documents in her Responsive Concise Statement of Material Facts . . ., Allstate promptly objected to this use.")

Case Date Jurisdiction State Cite Checked
2012-11-08 Federal PA B 7/13

Chapter: 27.1404
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09 cv 1002 Orl 31TBS, 2012 U.S. Dist. LEXIS 158944, at *30-31 (M.D. Fla. Nov. 6, 2012)
("[T]he evidence of record has established that Halifax (1) failed to lodge a privilege objection to these documents until November 2011, which was approximately eight months after production under the 2009 and 2010 subpoenas had concluded, and (2) failed to identify its specific privilege assertions in a privilege log until March 2012. Halifax delayed even though it was made aware of the documents upon which the Government intended to rely as early as April 14, 2011.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 27.1404
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09 cv 1002 Orl 31TBS, 2012 U.S. Dist. LEXIS 158944, at *32 (M.D. Fla. Nov. 6, 2012)
("[T]he Government has relied on these documents for more than a year and to withhold them now would be unfair considering that Halifax failed to take meaningful precautions to prevent the disclosure of privileged information and failed to assert privilege until eight months after production under the subpoenas had concluded. This factor weighs against a privilege finding.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 27.1404
Case Name: Clark Cnty. v. Jacobs Facilities, Inc., Case No. 2:10 cv 00194 LRH PAL, 2012 U.S. Dist. LEXIS 141651, at *29, *35 (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); "When Jacobs discovered in 2005 that the mitigation plan had been produced it promptly wrote to counsel for Clark County and counsel for AF Construction and Fireman's Fund to protect the privilege and rectify the error."; ultimately holding that the inadvertent disclosure of privileged documents did not result in a waiver)

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

Chapter: 27.1404
Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 553 (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 time the defendants took to rectify the error; "A year and a half passed between service of the answers to interrogatories to the doctors and their filing of a protective order. Even in October 2007, the doctors did not take immediate measures to secure its return and to protect the privilege. Instead, the doctors allowed a month to lapse before seeking relief from the circuit court in the form of a protective order. The doctors should have taken immediate action to attempt to maintain the privilege attached to the letter.")

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

Chapter: 27.1404
Case Name: D'Addario v. Geller, No. 2:02cv250, 2005 U.S. Dist. LEXIS 37065 (E.D. Va. June 28, 2005)
(holding that a party's two-year delay in asserting the attorney-client privilege amounted to a waiver)

Case Date Jurisdiction State Cite Checked
2005-06-28 Federal VA N 12/08

Chapter: 27.1404
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]he Clawback Order entered by the Court allows the producing party fourteen days after discovery of the error to issue a written notification and seek clawback. Ford accomplished these tasks in twenty-four hours.")

Case Date Jurisdiction State Cite Checked
2005-04-14 Federal WV

Chapter: 27.1502
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("Third, the Court considers the extent of the inadvertent disclosures. In the cases in which WilmerHale represented AbbVie, the inadvertently disclosed documents 'were not attached as an exhibit to any court filing, declaration, or deposition in any of the Niaspan patent cases, and they were not listed on any trial exhibit list.'. . . And in the case in which WilmerHale was conflicted out of representing AbbVie, none of the disputed documents were 'attached as exhibits to any court filing, used for any purpose, or offered or admitted into evidence.'. . . The Court concludes that the extent of the disclosure is de minimis.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 27.1502
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; "The Court also considers dispositive the extent of the disclosure, which in this case involved the publication of the document on the docket of this action.")

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

Chapter: 27.1502
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; "It must be remembered that Defendants are asking the Court to strike paragraphs from the Complaint which quote the Draft Document. . . . 'the more important period of delay in this case is' the over two-month period between the filing of the Government's Complaint and the time Defendants were informed that the privileged Draft Document was disclosed -- 'a period during which Defendants failed to discover the disclosure.' See Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 263 (D. Md. 2008). It is this delay that has indeed had a dangerous end for Defendants. See WILLIAM SHAKESPEARE, THE FIRST PART OF KING HENRY THE SIXTH act 3, sc. 2.")

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

Chapter: 27.1502
Case Name: Szulik v. State Street Bank and Trust Co., Civ. A. No. 12-10018-NMG, 2014 U.S. Dist. LEXIS 110447 (D. Mass. Aug. 11, 2014)
("[I]n light of the protective order entered into by the parties, the fact that State Street produced another copy of the email chain does not constitute a waiver of any privilege. The protective order allows a party to claw back a document regardless of whether its production was negligent or intentional. Further, 'work product protection is waived only when documents are used in a manner contrary to the doctrine's purpose, when disclosure substantially increases the opportunity for potential adversaries to obtain the information.'. . . Here, the disclosure was made only to the Szuliks in the context of litigation, and there was a prompt claw back request. This did not rise to the level of waiver. Such a disclosure did not take place here.")

Case Date Jurisdiction State Cite Checked
2014-08-11 Federal MA

Chapter: 27.1502
Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)
(holding that the Dechert law firm waived its privilege by leaving privilege documents in offices it shared with the law firm of Coudert Brothers, which then went bankrupt; "As for the extent of the disclosure of privileged materials, that consideration usually is addressed in the traditional inadvertent-disclosure context by comparing the quantity of privileged documents disclosed with the total volume of materials produced in discovery. . . . The materials left behind by Dechert in January 2006 on the Paris server and on the tapes apparently comprised a vast quantity of data, indeed, presumably all or at least most of the communications and documents created by the new Dechert lawyers for a three-month period. Dechert's failing in this respect does not involve a lawyer's understandable overlooking of one or a few confidential documents buried in a large pile of producible materials. Rather, it reflects a failure by Dechert to make any provision for the protection of a large volume of potentially sensitive materials on the server and the back-up tapes.")

Case Date Jurisdiction State Cite Checked
2014-07-31 Federal NY

Chapter: 27.1502
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 Jurisdiction State Cite Checked
2010-01-01 State VA

Chapter: 27.1502
Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 554 (Va. 2010)
("Waiver of the attorney-client privilege should not be found in every instance in which upholding the protections of confidentiality or privilege may unfairly become an obstacle to the truth, because such an expansive view of waiver would defeat the salutary purpose of the attorney-client privilege. However, parties should not be permitted to use the privilege as both a shield, preventing the admission of evidence, and as a sword to mislead the finder of fact by allowing evidence that would be impeached by the privileged information if it had not been suppressed. We hold that this factor also tips in favor of Walton. By ruling that the disclosure was involuntary and that the privilege attached to the letter had not been waived, the circuit court allowed the doctors' counsel to engage in questioning that had significant potential to mislead the jury.")

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

Chapter: 27.1502
Case Name: The American Coal Sales Company v. Nova Scotia Power Inc., Case No. 2:06-cv-94, 2009 U.S. Dist. LEXIS 13550 (S.D. Ohio Feb. 23, 2009)
("The Order finds that Plaintiff took reasonable precautions to avoid inadvertent disclosures by having two attorneys review documents prior to production . . . That inadvertent production of one document out of over 2,000 documents produced does not weigh in favor of waiver . . . ; that the extent of the waiver was not great because the document had not worked its way into the fabric of the litigation."; "Defendant's objections to the Order's findings in the Nilavar analysis likewise are not well taken. Magistrate Judge Abel's factual finding that Plaintiff had taken reasonable precautions to avoid inadvertent disclosure is a reasonable finding based on the evidence that two attorneys reviewed all documents before they were produced. The fact that order, non-binding court opinions have found differently does not mean that Magistrate Judge Abel's finding is clearly erroneous. The same is true for the Order's findings related to the number of disclosures.")

Case Date Jurisdiction State Cite Checked
2009-02-23 Federal OH

Chapter: 27.1503
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("Fifth, and finally, the Court considers whether the interests of justice favor either result. There is no indication that the interests of justice would be served by concluding that AbbVie had waived the privilege. There is no evidence, for example, that AbbVie strategically disclosed any of these documents in an effort to gain some advantage.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 27.1503
Case Name: Dover v. British Airways, PLC (UK), CV 2012-5567 (RJD) (MDG), 2014 U.S. Dist. LEXIS 114121 (E.D.N.Y. Aug. 15, 2014)
("'[O]verriding issues of fairness' which underlie all determinations regarding waiver or forfeiture of protection of privileged documents weigh even more heavily here, in light of the heightened deference accorded the stipulated inadvertent waiver provision. For the reasons discussed above, there has been no unfairness to the defendant. The only conceivable prejudice defendant has suffered is that it will be deprived of material that it may find tactically important, but which is now of little usefulness in future assessment of the merits of the claims asserted herein. . . . Nor is this an instance where plaintiffs 'made strategic use of the selective waiver of the privilege,' since the document was introduced at the Rank deposition by the defendants, not the plaintiffs.")

Case Date Jurisdiction State Cite Checked
2014-08-15 Federal NY

Chapter: 27.1503
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 Jurisdiction State Cite Checked
2014-04-25 Federal IA

Chapter: 27.1503
Case Name: Jo Ann Howard & Assocs., P.C. v. Cassity, Case No. 4:09CV-01252 ERW, 2013 U.S. Dist. LEXIS 101135, at *25 (E.D. Miss. July 19, 2013)
(finding that an inadvertent production of a document resulted in a waiver; "Finally, the Court finds that the overriding interest of justice would not be served by relieving Defendants of their error. The timeline provides a factual chronology of material events and key documents, without revealing any legal strategy, thoughts or insights of counsel, or other similar information suggesting work product. The Narrative Timeline does, however, contradict several denials made by Defendants in their Answer to Plaintiffs' Third Amended Complaint. A finding that the privilege has not been waived effectively would deprive Plaintiffs of contradictory evidence they know exists but would be unable to use.")

Case Date Jurisdiction State Cite Checked
2013-07-19 Federal MS B 4/14

Chapter: 27.1503
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09 cv 1002 Orl 31TBS, 2012 U.S. Dist. LEXIS 158944, at *32 (M.D. Fla. Nov. 6, 2012)
("[T]he Government has relied on these documents for more than a year and to withhold them now would be unfair considering that Halifax failed to take meaningful precautions to prevent the disclosure of privileged information and failed to assert privilege until eight months after production under the subpoenas had concluded. This factor weighs against a privilege finding.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 27.1504
Case Name: Carmody v. Board of Trustees of the Universitiy of Illinois, No. 16-1335, 2018 U.S. App. LEXIS 16425 (7th Cir. App. June 19, 2018)
(analyzing the implications of the inadvertent disclosure of privileged documents under mysterious circumstances; "The district court also found that the university, as holder of the privilege, took prompt and reasonable steps to rectify the disclosure. The university's outside counsel immediately tried to 'claw-back' the Perry memorandum upon opposing counsel's attempt to use it. At Adesida's deposition, the university's outside counsel immediately claimed inadvertence, instructed Adesida not to answer questions about the document, and requested that Carmody's lawyer destroy all copies of the document in his possession. The lawyer followed up with a letter and, upon reaching an impasse with Carmody's lawyer, filed the appropriate motion to compel return of the document and to bar its use as evidence. An element of basic fairness here also weighs against Carmody because of his lawyer's tactics. He or his lawyer surreptitiously photographed the document, stayed silent for a year, tried to surprise the university with the document at a deposition, and then made the document public by attaching it as an exhibit to a motion for summary judgment after defense counsel had demanded its return but before the court could resolve the issue.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal

Chapter: 27.1504
Case Name: Audubon Society of Portland v. Zinke, Case No. 1:17-cv-00069-CL (lead), 2018 U.S. Dist. LEXIS 53570 (D. Ore. March 27, 2018)
(holding that the federal government's inadvertent disclosure resulted in a waiver, which triggered a subject matter waiver; "Here, Federal Defendants note that the sheer size of the administrative record -- over 120,000 pages -- caused the inadvertent disclosure of the comment at issue, 'despite [their] best efforts[.]'. . . . As stated, the number of documents is a factor the court must consider; in fact, Rule 502's Advisory Committee Notes expressly say courts should take into account 'the number of documents to be reviewed.' And the Court is sympathetic to the sheer size of the record in this case; however, the fact that Federal Defendants disclosed the comment at issue in three separate iterations of the record and in a FOIA request lessens the weight given to this factor.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal OR

Chapter: 27.1504
Case Name: United States v. Brewington, Crim. Case No. 15-cr-00073-PAB, 2018 U.S. Dist. LEXIS 30425 (D. Colo. Feb. 26, 2018)
(holding that an inadvertent disclosure resulted in a waiver; explaining that the documents' owner did not take reasonable precautions on the owner's own, but that the government did take reasonable precautions and collected the documents and used a "filter team" to review the documents; "Applying Fed. R. Evid. 502(b) to the above findings, the Court determines that Mr. Elrod has waived his privilege with respect to the documents that he downloaded himself, but not with respect to those that were downloaded by the government's IT employee. Therefore, the Court will order the production of those documents that Mr. Elrod downloaded himself on the grounds that he has waived his attorney-client privilege."; "Defendant argues that Mr. Elrod has failed to take reasonable steps to rectify the production of privileged documents because he did not personally, or through his attorney, act to rectify the production of privileged materials, but instead allowed the government to take remedial steps. Docket No. 145 at 4-5; see Fed. R. Evid. 502, Advisory Committee Notes of Subdivision (b) ('The 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. But the rule does require the producing party to follow up on any obvious indications that a protected communication or information has been produced inadvertently.'). The Court finds that, under the circumstances, Mr. Elrod's actions in allowing the government to perform a privilege review is consistent with maintaining his privilege. In the context of criminal investigations, the government frequently conducts privilege reviews of seized documents to avoid intruding into suspects' attorney-client privilege. . . . Although the documents here were produced voluntarily, Mr. Elrod could reasonably consent, after Ms. Ballantyne brought the issue to Mr. Elrod's attention, to the government performing the privilege review to rectify the production error because the government was already in possession of the produced materials. . . . Accordingly, the Court finds that Mr. Elrod took reasonable steps to rectify the production error.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal CO

Chapter: 27.1504
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; "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.")

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

Chapter: 27.1504
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 Jurisdiction State Cite Checked
2017-03-30 Federal FL

Chapter: 27.1504
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 Jurisdiction State Cite Checked
2017-02-27 Federal NM

Chapter: 27.1504
Case Name: Baranski v. United States, No. 4:11-CV-123 CAS, 2015 U.S. Dist. LEXIS 71584 (E.D. Mo. June 3, 2015)
("In addition, although the documents at issue were produced on May 29, 2013, the government did not produce its privilege log until January 20, 2015, almost twenty months later, and only after it was ordered to do so by the Court. The government's failure to prepare a privilege log as required by the Federal Rules of Civil Procedure, even though it claims to have identified documents that were both privileged and non-privileged, weighs against a finding that the government can establish it took reasonable precautions to prevent inadvertent disclosure.")

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

Chapter: 27.1504
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; "[A]s to the fifth factor, the government has not established that the overriding interests of justice would be served by relieving it of the consequences of its error. Parties, including the government, must recognize there are potentially harmful consequences if they do not take even minimal precautions to prevent the disclosure of privileged documents. Issues of fairness weigh in favor of waiver, because the government had ample opportunity to discover and assert the claimed privileged status of the documents listed in Exhibit I, but did not do so until twenty-one months after it produced the documents and five months after it knew or should have known of the allegedly inadvertent disclosure. Petitioner has been in possession of these documents for two years and should not be forced to possibly alter his plans for presentation of his case at the evidentiary hearing to take into account the government's belatedly raised claim of privilege.")

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

Chapter: 27.1504
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 Jurisdiction State Cite Checked
2013-12-13 State DE B 5/14

Chapter: 27.1504
Case Name: Jo Ann Howard & Assocs., P.C. v. Cassity, Case No. 4:09CV-01252 ERW, 2013 U.S. Dist. LEXIS 101135, at *20-21 (E.D. Miss. July 19, 2013)
(finding that an inadvertent of production of a document resulted in a waiver; "Defendants intentionally produced the document twice with their voluntary, initial disclosures, naming the document 'Narrative Timeline.'")

Case Date Jurisdiction State Cite Checked
2013-07-19 Federal MS B 4/14

Chapter: 27.1504
Case Name: Samaritan Alliance, LLC v. Ken. (In re Samaritan Alliance), Case No. 07-50735, Adv. No. 12-5009, 2013 Bankr. LEXIS 671, at *11 (E.D. Ken. Feb. 20, 2013)
("A party is more likely to have waived its privilege when the party's total document disclosure is relatively small and convenient to review.")

Case Date Jurisdiction State Cite Checked
2013-02-20 Federal KY B 2/14

Chapter: 27.1504
Case Name: Samaritan Alliance, LLC v. Ken. (In re Samaritan Alliance), Case No. 07-50735, Adv. No. 12-5009, 2013 Bankr. LEXIS 671, at *12 (E.D. Ken. Feb. 20, 2013)
("[T]he content of the Emails is another factor relevant to the question of waiver. Where the content of a disclosed document 'is central to the claims made' in a case, the disclosing party 'should identify that document at the outset of [] litigation.' . . . Thus, disclosure of documents with content 'central to the claims made' in a case suggests waiver.")

Case Date Jurisdiction State Cite Checked
2013-02-20 Federal KY B 2/14

Chapter: 27.1504
Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 554 (Va. 2010)
("Waiver of the attorney-client privilege should not be found in every instance in which upholding the protections of confidentiality or privilege may unfairly become an obstacle to the truth, because such an expansive view of waiver would defeat the salutary purpose of the attorney-client privilege. However, parties should not be permitted to use the privilege as both a shield, preventing the admission of evidence, and as a sword to mislead the finder of fact by allowing evidence that would be impeached by the privileged information if it had not been suppressed. We hold that this factor also tips in favor of Walton. By ruling that the disclosure was involuntary and that the privilege attached to the letter had not been waived, the circuit court allowed the doctors' counsel to engage in questioning that had significant potential to mislead the jury.")

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

Chapter: 27.1604
Case Name: Marine Industrial Construction, LLC v. United States, No. 15-1189C, 2018 U.S. Claims LEXIS 1161 (Fed. Cl. Sept. 14, 2018)
(finding that plaintiff had not complied with its obligation to return documents the government claimed it have inadvertently produced; "The Court also agrees with the government that MIC has not met its obligations under RCFC 26 to return, destroy, or file under seal, any documents that the government inadvertently disclosed, once MIC received notice of the government's privilege assertions."; "It is undisputed that, after the government inadvertently produced certain documents related to DOF's consulting work, the government notified MIC of its objection to the disclosure of these documents."; "MIC acknowledges that, after being notified of the government's privilege assertions, it did not return or destroy the documents that the government inadvertently disclosed. . . . nonetheless, argues that it had no obligation to do so because the parties stipulated to other arrangements regarding the treatment of these documents. Id.; see also RCFC 29. But, even if true, MIC does not explain why it failed to file these documents under seal when MIC filed its motion to compel, as required by RCFC 26.")

Case Date Jurisdiction State Cite Checked
2018-09-14 Federal Other

Chapter: 27.1604
Case Name: United States v. Microsoft Corporation, No. 2:15-cv-00102 RSM, Stipulated Motion and [Proposed] Order Pursuant to FRE 502(d) (W.D. Wash. May 23, 2016)
(allowing the IRS to take a "quick peek" at Microsoft documents that might contain privileged communications; "The Parties agree that the act of disclosing documents to counsel for the United States, or IRS counsel, itemized on privilege logs provided to the United States in connection with the summonses for a Quick Peek Inspection will not constitute a waiver of the Microsoft Privilege Claims as to those documents, or a subject matter waiver based on those documents."; "The Parties further agree that any Privilege Claims asserted by Microsoft with respect to documents disclosed for a Quick Peek Inspection may be otherwise challenged and disputed by the United States, in this consolidated summons proceeding or otherwise, or by the IRS in any proceeding, either as to the documents disclosed, or as to subject matter waiver based on those documents, and the United States may, at its option, continue to demand production of the documents in connection with enforcing the summonses."; "The Parties further agree that, if after a Quick Peek Inspection, counsel for the United States indicates that the United States will not demand production of a particular document in connection with enforcing the summonses, this indication does not constitute an admission or agreement by the United States or the IRS that any Privilege Claims asserted by Microsoft (or Ernst & Young or KPMG LLP) with respect to that document are proper or valid.")

Case Date Jurisdiction State Cite Checked
2016-05-23 Federal WA
Comment:

key case


Chapter: 27.1605
Case Name: irth Sols., LLC v. Windstream Communs., LLC, Case No. 2:16-cv-219, 2018 U.S. LEXIS 12724 (S.D. Ohio Jan. 26, 2018)
(holding that a claw-back agreement did not automatically entitle a producing party to claw-back documents if it was "completely reckless" in having disclosed them; "[T]he remaining two elements of Rule 502(b)'s three-part test for waiver, the magistrate judge addressed the interplay between Rule 502(b) and the parties' clawback agreement. Under Rule 502(e), parties may agree on the effect of disclosure in a federal proceeding, and courts have recognized the ability of parties to contract away from Rule 502(b)'s test for waiver. The magistrate reviewed the three different approaches that courts have taken on the matter: (1) 'that a clawback arrangement (no matter how cursory) requires the return of inadvertently produced documents, regardless of the care taken by the producing party'; (2) 'that where there is a protective order with a clawback provision, inadvertent production of a document does not constitute waiver unless the document production process itself was completely reckless'; and (3) that 'the requirements of Rule 502(b) can be superseded by a clawback agreement only to the extent such an order or agreement provides concrete directives regarding each prong of Rule 502(b) i.e., (1) what constitutes inadvertence; (2) what precautionary measures are required; and (3) what the privilege holder's post-production responsibilities are to escape waiver.'"; "Noting that the Sixth Circuit has not yet addressed the issue, the magistrate rejected the first approach because allowing attorneys to agree to a clawback irrespective of the care they took during production 'would undermine the lawyer's responsibility to protect the sanctity of the attorney-client privilege.'. . . She further found that, in any event, the clawback agreement in this case did not contain language that would have eliminated the duty of pre-production review or provided for non-waiver regardless of the care taken by the producing party."; "The magistrate found that waiver had occurred under both the second and third approaches; thus, she did not find it necessary to choose one approach over the other. She found under the second approach that defense counsel was completely reckless because, among other things: Ms. Black failed to become familiarized with the identity of in-house counsel; 'the documents contain obviously privileged material on their face'; the privileged documents were not a needle-in-the-haystack but comprised 'more than 10% of the entire production' of 1400 readable pages; and counsel 'produced the exact same documents again — while simultaneously asking this Court to protect its privilege.'"; "Under the third approach, the magistrate found that the parties' clawback agreement was 'cursory' because the agreement, while stating that inadvertent disclosure would not waive the privilege, did not define what constitutes inadvertence or state what precautionary measures, if any, should be taken to prevent disclosure. . . . This meant that the duty under Rule 502(b)(2) to take 'reasonable steps to prevent disclosure' was not displaced. The magistrate found that defense counsel did not take reasonable steps to prevent disclosure for the same reasons that she found counsel's conduct to be completely reckless. Id. (noting further that 'defendant had months to review the documents')."; "Having concluded that defendant waived its attorney-client privilege, the magistrate determined that the waiver was limited to the 43 documents and did not constitute a full-subject matter waiver."; "The Court finds that defendant has not demonstrated that the magistrate judge's rejection of the first approach is clearly erroneous or contrary to law. Indeed, the Court agrees fully with the magistrate judge's analysis and adopts it as its own. The Court finds that Rule 502(b)(2) provides an important safeguard of the attorney-client privilege and that if parties wish to remove that safeguard, their agreement must reflect such an understanding. As the magistrate noted, the clawback agreement here lacked any language to support a finding that the parties came to an understanding that there would be no pre-production review.")

Case Date Jurisdiction State Cite Checked
2018-01-26 Federal OH
Comment:

key case


Chapter: 27.1605
Case Name: Commonwealth of Ky. v. Marathon Petroleum Co., LP, Case No. 3:15-cv-354-DJH-CHL, 2017 U.S. Dist. LEXIS 79614 (W.D. Ky. May 24, 2017)
(noting that Rule 502 allowed retrieval of inadvertently produced documents; finding a Rule 502 order unnecessary; "Rule 502(d) protects parties who unintentionally disclose information protected by the attorney-client privilege or work-product protection. Fed. R. Evid. 502. Its drafters intended Rule 502 to alleviate the costs of privilege review and retention. Fed. R. Evid. P. 502(d) advisory committee notes. The parties have not argued that entry of their proposed protective order is necessary to protect information protected by the attorney-client privilege or work-product protection. Nor have they shown that Rule 502(d) operates to protect what they seek to protect here: the 'confidential or proprietary information' of Marathon or third parties."; "In the Court's estimation, Rule 502(d) operates independently of, and does not rely upon, any protective order. The former creates a method for retrieving inadvertently produced documents; the latter acts to shield from the view of certain persons documents intentionally produced. Nothing in 502(d) calls for or requires the limiting factors inherent in a protective order."; "Furthermore, Rule 502(d)'s plain language indicates that the Court may, but is not required to, order that a party does not waive attorney-client privilege or work-product protection by inadvertently disclosing documents protected by privilege or protection. Most of all, even if these orders are 'common in complex civil litigation,' that a practice is common does not mean that it is required, nor does it mean that it is proper under the Federal Rules of Evidence. Thus, the Court finds that the parties have not shown that Rule 502(d) applies to this proposed protective order. Accordingly, the Court will decline to adopt the language from the parties' proposed order referring to Rule 502(d) (¶¶ 22 - 25).")

Case Date Jurisdiction State Cite Checked
2017-05-24 Federal KY
Comment:

key case


Chapter: 27.1605
Case Name: United States v. Fishoff, Crim. A. No. 15-586 (MAS), 2016 U.S. Dist. LEXIS 10831 (D.N.J. Aug. 16, 2016)
(finding that a criminal defendant who entered into a plea agreement with the government did not waive privilege protection by inadvertently providing privileged documents to the government, which were clawed-back; also finding that the government was not obligated under Brady to disclose the documents to another defendant, because the government no longer possessed the documents; "'The Court is not persuaded by Defendant's argument that Rule 502(e) should apply in this context, because Petrello's June 25, 2015 correspondence specifically stated he was not waiving any privilege. See Fed. R. Evid. 502(2), advisory committee's notes ('Subdivision (e) codifies the well-established proposition that parties can enter an agreement to limit the effect of waiver by disclosure between or among them.') (emphasis added).'"; [O]n June 22, 2015, Petrello agreed to turn over two e-mail accounts and a forensic copy of his hard drive to the Government in cooperation with the criminal charges brought against him. . . . By correspondence dated June 25, 2015, counsel for Petrello expressly stated that 'Petrello is not waiving any rights he has to preclude the DOJ from reviewing or utilizing any privileged communications, including communications subject to the attorney-client privilege.'. . . The correspondence additionally provided the names of Petrello's attorneys and stated that if the Government 'determines that an e[-]mail is between Mr. Petrello and one of these attorneys, or another attorney, the e[-]mail [is] not [to] be reviewed and it [is to] be marked as privileged.' (Id.) By correspondence dated July 7, 2015, the Government agreed to review the information provided by Petrello in accordance with the parameters set forth in the June 25, 2015 correspondence. Thereafter, the Government produced the allegedly privileged material to the Securities and Exchange Commission and Fishoff."; "As no party contests that the materials in question are subject to the attorney-client privilege, for the sake of this analysis only, the Court will assume that the e-mail messages at issue are protected by the attorney-client privilege. As to the Rule 502(b) factors, the Court finds that Petrello's disclosure was inadvertent, in that he sought to quickly cooperate with the Government due to the pending criminal charges against him and the pending charges against his coconspirators. Second, Petrello through the June 25, 2015 correspondence, adequately took steps to protect himself against any inadvertent disclosure due to the nature of electronically stored information. Lastly, Petrello's counsel quickly followed-up with the June 25, 2015 correspondence to set-up a claw-back agreement, similar to the procedures in Federal Rule of Civil Procedure 26(b)(5)(B), in which the Government was to mark any privileged documents as such and not review them. . . . Therefore, the Court finds that Petrello did not waive privilege as to the e-mail messages produced to the Government.")

Case Date Jurisdiction State Cite Checked
2016-08-16 Federal NJ

Chapter: 27.1605
Case Name: Northrop Grumman Sys. Corp. v. United States, No. 12-286C, 2015 U.S. Claims 235 (Fed. Cl. March 9, 2015)
(finding that the government's inadvertent production did not waive privilege; "While recognizing that introducing the requirements of 502(b)(2) and (3) into enforcement of the protective order runs the risk of making it look superfluous to an extent, we believe that such a gloss does no violence to this particular protective agreement. Paragraph 18 requires each party to 'review its documents for privileged information prior to production.' A normal reading suggests that a reasonable effort is implied. In addition, the rule requirement of promptly moving to rectify the mistake is arguably fully consistent with the claw back agreement. The claw back provision simply does not speak to the question."; "In any event, defendant's concession that the protective order's claw back provision is subject to the implicit requirements that the initial privilege review must have been reasonable and its assertion of the privilege timely saves our having to resolve a dispute in the case law.")

Case Date Jurisdiction State Cite Checked
2015-03-09 Federal Other

Chapter: 27.1606
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Defendants argue that MMO's 'conduct in this case goes far beyond mere inadvertence' because MMO has produced -- without seeking to claw back -- approximately 360 documents that are marked privileged or confidential, that refer to MMO's attorneys by name, or that contain exchanges with MMO's in-house and outside counsel. Defs.' Mot. at 1-2, 5; see also Goroff Exs. 1-6. The Court rejects this argument because it conflates the inadvertence inquiry with the logically distinct question whether, under Rule 502(b)(2), the party took reasonable steps to prevent disclosure."; "Defendants also argue that MMO's disclosures were not inadvertent because MMO waited until a week after Dr. Canaday's deposition to claw back Exhibit E. The Court similarly rejects this argument because it conflates the inadvertence inquiry with the question whether, under Rule 502(b)(3), the party took prompt steps to rectify the error."; "MMO's attorney has filed a sworn declaration describing the circumstances and timeline of MMO's discovery of the disclosures. The Court is satisfied that MMO did not make a knowing choice to produce the documents and that the disclosures were inadvertent.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL

Chapter: 27.1606
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Rule 502(d), however, allows a federal court to enter an order that the attorney-client or work product privilege 'is not waived by disclosure connected with the litigation pending before the court -- in which event the disclosure is also not a waiver in any other federal or state proceeding.' Fed. R. Evid. 502(d). In this case, the parties' agreed, court-entered protective order provides that the claw-back and non-waiver provisions for inadvertent disclosures are and 'shall be construed as, an Order under Rule 502(d).' D.E. 194 ¶ 18. MMO argues that because the parties obtained a Rule 502(d) order to govern inadvertent production of privileged material, the Court should not apply Rule 502(b) to analyze waiver."; "Defendants argue that the protective order does not override Rule 502(b). They cite a litany of out-of-circuit cases to argue that '[a]lthough Rule 502 recognizes that the default test set forth in subsection (b) may be superseded by court order or agreement of parties, see Fed. R. Evid. 502(d), (e), such an order or agreement must provide concrete directives' that correspond to each element of Rule 502(b)."; "The Seventh Circuit has not addressed this issue. Nor have courts in the Northern District of Illinois taken a uniform approach."; "The Court concludes that the parties' protective order governs inadvertent disclosures; Rule 502(b) does not. Paragraph 18 of the protective order states that it 'is, and shall be construed as, an Order under Rule 502(d).' D.E. 194 ¶ 18. It also reiterates the non-waiver language from Rule 502(d) and quotes from the Rule. Id. Paragraphs Four and Seventeen of the protective order likewise contain non-waiver language, and Paragraph Four states that the purpose of the protective order is to 'facilitat[e] the exchange of information . . . without involving the Court unnecessarily.' Id. ¶ 4. These drafting choices reflect the parties' intent to create their own guidelines to address inadvertent disclosure and to avoid waiver-related litigation under Rule 502(b).")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL
Comment:

key case


Chapter: 27.1606
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Defendants suggest that even if MMO's disclosures were inadvertent, MMO did not comply with the "timing provision of the Protective Order's claw back clause" because MMO had discovered the first inadvertent disclosures by October 3, 2017 but did not make made its last claw-back request until December 15, 2017. . . . The protective order, however, does not state that once the producing party discovers an inadvertent production, it has only twenty business days to give notice of every subsequent inadvertent production. Rather, it simply requires that the producing party give notice 'within twenty (20) business days of discovering the inadvertent production.'. . . MMO made a claw-back request for each disputed document within twenty business days of discovering that document's disclosure. It complied with the timing provision in the protective order."; "Defendants also suggest that MMO did not comply with the protective order because it failed to timely serve a privilege log. But nothing in the protective order suggests that failure to serve a privilege log -- or late service of a log -- waives privilege.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL

Chapter: 27.1606
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Defendants argue that even if the parties' protective order supersedes Rule 502(b), MMO separately waived the privilege for Exhibit E (and by extension Exhibit F) by failing to object when defendants used Exhibit E during Dr. Canaday's deposition, allowing Dr. Canaday to testify about it for approximately ten minutes, and waiting seven days to claw it back. Defendants support their argument with a district court decision holding that 'failure to timely object to the introduction of an exhibit [during deposition] waives any privilege, regardless of the presence of a claw-back provision' that is 'intended to override the common law as to inadvertent disclosure.'"; "[T]he Court believes that assessing defendants' separate waiver argument would amount to performing a Rule 502(b)(3) analysis under a different name. Doing so would be inconsistent with the Court's determination that the parties intended for their protective order to override Rule 502(b). The Court therefore rejects defendants' separate waiver argument for Goroff Exhibits E and F.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL

Chapter: 27.1606
Case Name: Leibovic v. United Shore Financial Services, LLC, Case No. 15-12639, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017)
("As XMS acknowledges, a non-privileged, responsive document is discoverable wherever it may be located -- including counsel's database. The operative fact here is that the underlying documents XMS seeks to claw-back were non-responsive to Plaintiff's and/or United Shore's discovery requests. Although Plaintiff and United Shore say some of the documents XMS seeks to claw-back are relevant, they do not dispute that those documents were non-responsive to their requests. Therefore, but for the inadvertent production of those documents, XMS never would have produced those documents."; "Here, XMS's counsel directed XMS to search and turn over a multitude of documents in anticipation of litigation. XMS's counsel produced all responsive documents; it also inadvertently produced non-responsive documents that it had gathered, maintained and organized in its database in anticipation of litigation."; "Because the approximately 400 documents XMS inadvertently produced are non-responsive and were compiled by XMS's counsel in anticipation of litigation, they are protected by the work product doctrine and subject to claw-back under the Discovery Plan.")

Case Date Jurisdiction State Cite Checked
2017-08-28 Federal MI

Chapter: 27.1606
Case Name: Leibovic v. United Shore Financial Services, LLC, Case No. 15-12639, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017)
("As XMS acknowledges, a non-privileged, responsive document is discoverable wherever it may be located -- including counsel's database. The operative fact here is that the underlying documents XMS seeks to claw-back were non-responsive to Plaintiff's and/or United Shore's discovery requests. Although Plaintiff and United Shore say some of the documents XMS seeks to claw-back are relevant, they do not dispute that those documents were non-responsive to their requests. Therefore, but for the inadvertent production of those documents, XMS never would have produced those documents."; "Here, XMS's counsel directed XMS to search and turn over a multitude of documents in anticipation of litigation. XMS's counsel produced all responsive documents; it also inadvertently produced non-responsive documents that it had gathered, maintained and organized in its database in anticipation of litigation."; "Because the approximately 400 documents XMS inadvertently produced are non-responsive and were compiled by XMS's counsel in anticipation of litigation, they are protected by the work product doctrine and subject to claw-back under the Discovery Plan.")

Case Date Jurisdiction State Cite Checked
2017-08-28 Federal MI

Chapter: 27.1606
Case Name: Irth Solutions, LLC v. Windstream Communications LLC, Civ. A. 2:16-cv-219, 2017 U.S. Dist. LEXIS 121241 (S.D. Ohio Aug. 2, 2017)
(finding that the inadvertent production on two occasions of forty-three protected documents resulted in a waiver, and also holding that a claw-back agreement did not allow the producing party the right to retrieve the documents; noting as follows: "'The parties agreed that a formal court order under Fed. R. Evid. 502(d) was not necessary based on the scale of the case, but that the parties would agree among themselves as follows: 'If a producing party discovers that it has inadvertently produced a document that is privileged, the producing party will promptly notify the receiving party of the inadvertent production.' 'The receiving party will promptly destroy or return all copies of the inadvertently-produced document.' 'Inadvertent production of privileged documents does not operate as a waiver of that privilege.'"; "Rule 502, however, does not distinguish between 'negligent disclosure' and 'inadvertent disclosure.' Instead, the language of Rule 502 allows for only two options: there is either (1) intentional disclosure of privileged material, in which case Rule 502(a) defines the scope of the waiver or (2) an unintentional, inadvertent disclosure, in which Rule 502(b) guides whether waiver occurred."; "That a negligent disclosure is subsumed within the category of an inadvertent disclosure finds support in the relevant case law."; "Intuitively, this makes sense based upon the remaining language of Rule 502(b). The reasonableness of counsel's actions are considered expressly in 502(b)(2) and (b)(3), with no evidence that reasonableness should also be part of the (b)(1) analysis. . . . The Court thus concludes that classifying a disclosure is a binary choice: it is either intentional or inadvertent.")

Case Date Jurisdiction State Cite Checked
2017-08-02 Federal OH

Chapter: 27.1606
Case Name: Irth Solutions, LLC v. Windstream Communications LLC, Civ. A. 2:16-cv-219, 2017 U.S. Dist. LEXIS 121241 (S.D. Ohio Aug. 2, 2017)
(finding that the inadvertent production on two occasions of forty-three protected documents resulted in a waiver, and also holding that a claw-back agreement did not allow the producing party the right to retrieve the documents; noting as follows: "'The parties agreed that a formal court order under Fed. R. Evid. 502(d) was not necessary based on the scale of the case, but that the parties would agree among themselves as follows: 'If a producing party discovers that it has inadvertently produced a document that is privileged, the producing party will promptly notify the receiving party of the inadvertent production.' 'The receiving party will promptly destroy or return all copies of the inadvertently-produced document.' 'Inadvertent production of privileged documents does not operate as a waiver of that privilege.'"; "The Court notes that the clawback agreement between the parties stated that upon notification of inadvertent production, '[t]he receiving party will promptly destroy or return all copies of the inadvertently-produced document.'. . . However, as discussed at great length above, the clawback agreement was ambiguous and deficient. The Court is therefore satisfied that Plaintiff's counsel complied with Fed. R. Civ. P. 26(b)(5)(B) in the midst of confusion regarding if and how the clawback agreement applied. Consequently, sanctions are not warranted.")

Case Date Jurisdiction State Cite Checked
2017-08-02 Federal OH
Comment:

key case


Chapter: 27.1606
Case Name: Irth Solutions, LLC v. Windstream Communications LLC, Civ. A. 2:16-cv-219, 2017 U.S. Dist. LEXIS 121241 (S.D. Ohio Aug. 2, 2017)
(finding that the inadvertent production on two occasions of forty-three protected documents resulted in a waiver, and also holding that a claw-back agreement did not allowing the producing party the right to retrieve the documents; noting as follows: "'The parties agreed that a formal court order under Fed. R. Evid. 502(d) was not necessary based on the scale of the case, but that the parties would agree among themselves as follows: 'If a producing party discovers that it has inadvertently produced a document that is privileged, the producing party will promptly notify the receiving party of the inadvertent production.' 'The receiving party will promptly destroy or return all copies of the inadvertently-produced document.' 'Inadvertent production of privileged documents does not operate as a waiver of that privilege.'"; "Having assumed that Defendant's two productions of privileged documents were inadvertent and thus fall under Rule 502(b), the Court must next examine the impact of the clawback agreement permitted by Rule 502(e). Defendant argues that a clawback agreement under Rule 502(e) 'indisputably governs the privilege waiver issue' and supplants the waiver analysis of Rule 502(b). . . . Defendant fails to acknowledge, however, that despite Rule 502's goal of creating uniformity, courts still dispute how to analyze inadvertent disclosures when a cursory clawback agreement exists and alleged carelessness caused an inadvertent production."; "Under the first approach, courts have held that a clawback arrangement (no matter how cursory) requires the return of inadvertently produced documents, regardless of the care taken by the producing party."; "The second approach holds 'that where there is a protective order with a clawback provision, inadvertent production of a document does not constitute waiver unless the document production process itself was 'completely reckless.'"; "Courts in the Second Circuit have largely followed this approach by recognizing that '[i]nadvertent disclosure provisions in stipulated protective orders are generally construed to provide heightened protection to producing parties,' but waiver occurs 'where the producing party acted in a 'completely reckless' manner with respect to its privilege.'"; "Consistent with the previous two approaches, the third approach also acknowledges that clawback agreements provide a means to contract around Rule 502(b) in a way that saves parties time and money. However, under the third approach, the requirements of Rule 502(b) can be superseded by a clawback agreement 'only to the extent 'such an order or agreement [provides] concrete directives regarding each prong of Rule 502(b) i.e., (1) what constitutes inadvertence; (2) what precautionary measures are required; and (3) what the privilege holder's post-production responsibilities are to escape waiver.'"; "In sum, this approach acknowledges the power of a clawback agreement to circumvent Rule 502 but puts the onus on the parties to provide necessary details. And, if the clawback agreement provides insufficient guidance on how to analyze the circumstances of the inadvertent production, Rule 502's three-part test for waiver applies."; "With this in mind, the Court rejects the first approach. To hold that a clawback agreement always protects against waiver -- regardless of its terms and irrespective of counsel's actions -- is inconsistent with the underpinnings of Rule 502 and the attorney-client privilege."; "Both the second and third approach appeal to this Court, for reasons discussed below, but the Court need not choose because Defendant has waived privilege under either. Because, when taking into account the careless privilege review, coupled with the brief and perfunctory clawback agreement, following either approach leads to the same result: Defendant has waived the privilege.")

Case Date Jurisdiction State Cite Checked
2017-08-02 Federal OH
Comment:

key case


Chapter: 27.1606
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 Jurisdiction State Cite Checked
2017-02-27 Federal NM

Chapter: 27.1606
Case Name: Bailey v. Oakwood Healthcare, Inc., Case No. 15-11799, 2017 U.S. Dist. LEXIS 13667 (E.D. Mich. Feb. 1, 2017)
(finding that defendant's inadvertent production of documents did not result in a waiver, although inexplicably failing to cite Rule 502; "[T]he Court's Stipulated Protective Order issued on October 15, 2015 . . . provides that a party's inadvertent disclosure of privileged materials 'shall not be construed to be a waiver, in whole or in part, of that party's claim to privilege.'. . . It would not have been unreasonable for Defendant to rely on this in deciding not to seek the return of inadvertently disclosed privileged information that had been analyzed at deposition, but later to seek to exclude that same information from substantive evidence.")

Case Date Jurisdiction State Cite Checked
2017-02-01 Federal MI

Chapter: 27.1606
Case Name: Terrell v. Central Washington Asphalt, Inc., Case No. 2:11-cv-00142-APG-VCF, 2015 U.S. Dist. LEXIS 94047 (D. Nev. July 20, 2015)
(finding that a Rule 26 claw-back notice was not effective because it did not specify the claimed protection; "The Rule places an initial burden on the party that produced the information to notify the receiving parties of the claim of privilege and the basis for that claim."; "The CW defendants did not meet their initial burden of asserting the claim of privilege and the basis for it as required by Rule 26(b)(5)(B). The March 27, 2013 letter states in conclusory fashion only that the material was 'privileged,' without identifying which privilege was at issue. The CW defendants contend the burden then shifted to the other parties to file a motion, but the letter did not sufficiently enable the other parties to file a meaningful motion because it did not identify which privilege or privileges were being asserted. The lack of specificity is further demonstrated by the fact that the CW defendants have changed their position on the matter. During the depositions, defense counsel objected on the basis of the attorney-client privilege. Their motion before the magistrate judge asserted for the first time that the information was attorney work product. Under these circumstances, the CW defendants did not properly initiate Rule 26(b)(5)(B)'s clawback procedure with a sufficiently specific assertion of privilege.")

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal NV

Chapter: 27.1606
Case Name: Terrell v. Central Washington Asphalt, Inc., Case No. 2:11-cv-00142-APG-VCF, 2015 U.S. Dist. LEXIS 94047 (D. Nev. July 20, 2015)
(finding that a Rule 26 claw-back notice was not effective because it did not specify the claimed protection; "Rule 26(b)(5)(B) does not address whether the disclosed material is actually privileged or whether any privilege was waived. . . . Those are separate questions determined under relevant case law and the Federal Rules of Evidence. . . . Instead, Rule 26(b)(5)(B) governs the parties' conduct until those questions are resolved. . . . Consequently, the parties must comply with Rule 26(b)(5)(B) regardless of whether the information is privileged or the privilege was waived.")

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal NV

Chapter: 27.1606
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]he Clawback Order entered by the Court allows the producing party fourteen days after discovery of the error to issue a written notification and seek clawback. Ford accomplished these tasks in twenty-four hours.")

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

Chapter: 27.1606
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; quoting the court's claw-back order: "'The requirements of Rule 502(b) may be superseded by an agreement between the parties, or by a clawback order, but only to the extent 'such an order or agreement [provides] concrete directives regarding each prong of Rule 502(b) -- i.e., (1) what constitutes inadvertence; (2) what precautionary measures are required; and (3) what the privilege holder's post-production responsibilities are to escape waiver.' In areas where the order or agreement lacks specifics, Rule 502(b) will control."; "'The inadvertent disclosure of a document subject to a claim of privilege or of protection as trial-preparation material, including electronically stored information ('ESI'), shall not constitute a waiver of any privilege claim or protection to that document if (a) the holder of the privilege or protection took reasonable steps to prevent disclosure and (b) the holder promptly took reasonable steps to rectify the error. For purposes of this Order, the term 'promptly' shall mean within 14 days of the discovery of the inadvertent disclosure.'")

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

Chapter: 27.1606
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 Jurisdiction State Cite Checked
2014-09-16 Federal NH

Chapter: 27.1606
Case Name: Zorek v. CVS Caremark Corp., Civil No. 1:13-cv-1949, 2014 U.S. Dist. LEXIS 127742, at *2 (M.D. Pa. Sept. 11, 2014)
("The primary difference between the two proposed orders concerns the applicability of conditions set forth in FRE 502(b) governing the effect of disclosing privileged information. Plaintiff's proposal would implement the Rule 502(b) clawback provisions while Defendant's proposal expressly rejects those provisions. Plaintiff's proposed order is preferable because: (i) it is in accord with the default provisions of Rule 502(b); and, (ii) it provides appropriate incentives for both parties to comply with discovery requests in a fair and efficient manner. Accordingly, Plaintiff's proposed Stipulated Protected Order will be adopted.")

Case Date Jurisdiction State Cite Checked
2014-09-11 Federal PA

Chapter: 27.1606
Case Name: Zorek v. CVS Caremark Corp., Civil No. 1:13-cv-1949, 2014 U.S. Dist. LEXIS 127742, at *4-5 (M.D. Pa. Sept. 11, 2014)
("Defendant expressly rejects the clawback provisions set forth in FRE 502(b). Instead, Defendant proposes an order pursuant to FRE 502(d) and € whereby disclosure of privileged information does not operate as a waiver irrespective of the degree of care taken by the producing party in either preventing or rectifying disclosure. Instead, the producing party need only follow certain provisions in order to clawback privileged information. Those provisions do not require that the producing party engage in any pre- or post-production privilege review, and further impose upon the receiving party certain affirmative obligations.")

Case Date Jurisdiction State Cite Checked
2014-09-11 Federal PA

Chapter: 27.1606
Case Name: Zorek v. CVS Caremark Corp., Civil No. 1:13-cv-1949, 2014 U.S. Dist. LEXIS 127742, at *7-8 (M.D. Pa. Sept. 11, 2014)
("As the Advisory Committee explains, allowing for non-waiver of privilege regardless of the degree of care exercised by the producing party can avoid potentially large costs of pre-production review. This is particularly true, for example, in litigation involving ESI and large amounts of documents. Where large amounts of data or documents are responsive but only a few of which may turn out to be useful, it is less costly in terms of time and labor to conduct privilege review after the relevant documents have been identified. . . . In this case, large amounts of documents are not involved. As Plaintiff points out, 'the number[] of documents produced by [Defendant] will be measured in the thousands of pages, not in terabytes of data.' Hence, the efficiency rationale of forgoing pre-production review does not apply. And to the extent that Defendant's proposed clawback provision would shift the burden of privilege review to the receiving party, inefficiency would result since presumably the producing party is better positioned to identify which documents are privileged. For similar reasons, under Defendant's proposal, needless uncertainty would obtain: the receiving party could never be sure which documents might be later subject to a claim of privilege.")

Case Date Jurisdiction State Cite Checked
2014-09-11 Federal PA

Chapter: 27.1606
Case Name: Dover v. British Airways, PLC (UK), CV 2012-5567 (RJD) (MDG), 2014 U.S. Dist. LEXIS 114121 (E.D.N.Y. Aug. 15, 2014)
("Paragraph 10 of the stipulation signed by the parties states that '[p]ursuant to Fed. R. Evid. 502(d), the inadvertent disclosure of any material that qualifies as Protected Information does not waive the protection or the privilege for either that material or for the subject matter of that material.'. . . A finding of 'waiver is appropriate only if production of the privileged material was 'completely reckless.'. . . Under the 'completely reckless' standard, 'inadvertent production will not waive the privilege unless the conduct of the producing party or its counsel evinced such extreme carelessness as to suggest that it was not concerned with the protection of the asserted privilege.'. . . Such a standard is appropriate because 'merely incorporat[ing] caselaw standards governing inadvertent disclosure' would nullify inadvertent waiver provisions in a stipulated confidentiality agreement.")

Case Date Jurisdiction State Cite Checked
2014-08-15 Federal NY

Chapter: 27.1606
Case Name: Szulik v. State Street Bank and Trust Co., Civ. A. No. 12-10018-NMG, 2014 U.S. Dist. LEXIS 110447 (D. Mass. Aug. 11, 2014)
("[I]n light of the protective order entered into by the parties, the fact that State Street produced another copy of the email chain does not constitute a waiver of any privilege. The protective order allows a party to claw back a document regardless of whether its production was negligent or intentional. Further, 'work product protection is waived only when documents are used in a manner contrary to the doctrine's purpose, when disclosure substantially increases the opportunity for potential adversaries to obtain the information.'. . . Here, the disclosure was made only to the Szuliks in the context of litigation, and there was a prompt claw back request. This did not rise to the level of waiver. Such a disclosure did not take place here.")

Case Date Jurisdiction State Cite Checked
2014-08-11 Federal MA

Chapter: 27.1606
Case Name: Elbert v. C.R. Bard, Inc., Civ. A. No. 12-01253, 2014 U.S. Dist. LEXIS 57073 (E.D. Pa. April 24, 2014)
("'[I]t is true that the protective order in the California action in which the clawback request was denied provided that the attorneys could use documents in that and other actions involving Lopez McHugh, that use is subject to the protective orders in those other actions. . . . Those protective orders clearly state that inadvertent disclosure does not constitute a waiver.'")

Case Date Jurisdiction State Cite Checked
2014-04-24 Federal PA

Chapter: 27.1606
Case Name: Georgia-Pacific LLC v. OfficeMax Inc., No. C 12-02797 LB, 2014 U.S. Dist. LEXIS 33616, at *10, *14 (N.D. Cal. Feb. 28, 2014)
(analyzing a claw-back agreement; "On June 10, 2013, Georgia-Pacific produced to OfficeMax a disc containing about 17,000 pages of documents. Eighteen days later, on June 28, 2013, Georgia-Pacific notified OfficeMax in writing that it 'had just discovered that its document vendor inadvertently produced' 503 privileged. Georgia-Pacific did not specifically identify, by bates number, the privileged documents at this time. Instead, Georgia-Pacific asked OfficeMax to return the entire disc. OfficeMax refused to return the entire disc and instead told Georgia-Pacific that it needed to specifically identify the privileged documents to be returned. About 3.5 months later, on October 11, 2013, Georgia-Pacific specifically identified the privileged documents by including them on a privilege log and provided OfficeMax with a replacement disc that omitted the privileged documents. Georgia-Pacific now wants to 'clawback' the privileged documents that OfficeMax has not returned or destroyed."; citing the claw-back agreement, which uses the "inadvertent" and "prompt" standards, and allows the receiving party to retain a copy of any challenged documents pending a court ruling; "[T]he court finds Georgia-Pacific's original notice was prompt. It should have identified its specific bates ranges earlier that it did, and it also did not need to wait to send its privilege log, but the court does not construe this as a waiver of any applicable privilege.")

Case Date Jurisdiction State Cite Checked
2014-02-28 Federal CA B 8/14

Chapter: 27.1606
Case Name: Nat'l Credit Union Admin. Bd. v. UBS Sec., LLC, Case No. 12-cv-2591-JWL-JPO, 2014 U.S. Dist. LEXIS 9287, at *25 (D. Kan. Jan. 27, 2014)
(adopting a claw-back order that included the "inadvertent production" standard)

Case Date Jurisdiction State Cite Checked
2014-01-27 Federal KS B 6/14

Chapter: 27.1606
Case Name: RIPL Corp. v. Google, Inc., No. 2:12-cv-02050-RSM, 2013 U.S. Dist. LEXIS 179193, at *9-10 (W.D. Wash. Dec. 17, 2013)
(analyzing the effect of a claw-back order which had both the inadvertent and the prompt remedial step standards; "Put simply, the court [in Great-West Life & Annuity Ins. Co. v. Am. Econ. Ins. Co., Case No. 2:11-CV-02082-APG, 2013 U.S. Dist. LEXIS 135750 (D. Nev. Sept. 23, 2013)] determined that under Rule 502, terms like 'inadvertence' and 'prompt' need not be defined in the protective order. Moreover, although the parties deviated from the language of the clawback provision set forth in the W.D. Wash. Model Protective Order, the Model Protective Order does not itself define the term 'inadvertence.' Google's counsel stated via declaration that the disclosure was inadvertent and that statement satisfies the plain terms of Section 9. And under Section 9, inadvertent disclosure does not constitute a waiver of any privilege or immunity.")

Case Date Jurisdiction State Cite Checked
2013-12-17 Federal WA B 5/14

Chapter: 27.1606
Case Name: RIPL Corp. v. Google, Inc., No. 2:12-cv-02050-RSM, 2013 U.S. Dist. LEXIS 179193, at *10 (W.D. Wash. Dec. 17, 2013)
(analyzing the effect of a claw-back order which had both the inadvertent and the prompt remedial step standards; "With respect to the word 'prompt,' courts have found that when counsel contacted the opposing party within a few days of the inadvertent disclosure, such notice was in fact 'prompt.' . . . Here, notice was provided one day after the disclosure was discovered and was therefore prompt.")

Case Date Jurisdiction State Cite Checked
2013-12-17 Federal WA B 5/14

Chapter: 27.1606
Case Name: RIPL Corp. v. Google Inc., No. 2:12-cv-02050-RSM, 2013 U.S. Dist. LEXIS 179193, at *10 (W.D. Wash. Dec. 17, 2013)
February 5, 2014 (PRIVILEGE POINT)

"Litigants Risk Waiver in Drafting Claw-Back Agreement Provisions"

Under Federal Rule of Evidence 502, litigants can agree on a claw-back order that allows retrieval of protected documents even if the producing litigant does a sloppy job of privilege review – or conducts no privilege review at all. However, many litigants continue to draft claw-back orders that allow such retrieval only if the producing party "inadvertently" produced the protected documents, and "promptly" seeks their return. These provisions needlessly risk waiver, if the producing party falls short on one or both of these standards.

In RIPL Corp. v. Google Inc., No. 2:12-cv-02050-RSM, 2013 U.S. Dist. LEXIS 179193, at *10 (W.D. Wash. Dec. 17, 2013), the court dealt with such a claw-back order – ultimately concluding that the producing party's notice of an inadvertent production one day after discovering the mistake met the "promptly" standard. Four days earlier, a Delaware state court also dealt with a claw-back order that included both the "inadvertently" and "promptly" standards. Jefferson v. Dominion Holding, Inc., C.A. No. 8663-VCN, 2013 Del. Ch. LEXIS 301 (Del. Ch. Dec. 13, 2013). The court noted that "[t]he parties did not agree to the 'claw back' of all privileged material that was produced without the knowing intent to do so. Inadvertence was the selected standard." Id. At *6. Fortunately for the producing party, the court found that it had met the "inadvertently" standard. It also met the "promptly" standard. The producing party discovered the mistake during a deposition, and advised the other side at the next deposition break. However, the court then provided a chilling warning: "Had the concern not been raised until after completion of the deposition, the result might be different." Id. At *8.

Litigants negotiating a claw-back order might take different positions on the inclusion of the "inadvertently" and "promptly" standards, but lawyers should keep in mind that those standards are not required.

Case Date Jurisdiction State Cite Checked
2013-12-17 Federal WA
Comment:

key case


Chapter: 27.1606
Case Name: Jefferson v. Dominion Holding, Inc., C.A. No. 8663-VCN, 2013 Del. Ch. LEXIS 301 (Del. Ch. Dec. 13, 2013)
February 5, 2014 (PRIVILEGE POINT)

"Litigants Risk Waiver in Drafting Claw-Back Agreement Provisions"

Under Federal Rule of Evidence 502, litigants can agree on a claw-back order that allows retrieval of protected documents even if the producing litigant does a sloppy job of privilege review – or conducts no privilege review at all. However, many litigants continue to draft claw-back orders that allow such retrieval only if the producing party "inadvertently" produced the protected documents, and "promptly" seeks their return. These provisions needlessly risk waiver, if the producing party falls short on one or both of these standards.

In RIPL Corp. v. Google Inc., No. 2:12-cv-02050-RSM, 2013 U.S. Dist. LEXIS 179193, at *10 (W.D. Wash. Dec. 17, 2013), the court dealt with such a claw-back order – ultimately concluding that the producing party's notice of an inadvertent production one day after discovering the mistake met the "promptly" standard. Four days earlier, a Delaware state court also dealt with a claw-back order that included both the "inadvertently" and "promptly" standards. Jefferson v. Dominion Holding, Inc., C.A. No. 8663-VCN, 2013 Del. Ch. LEXIS 301 (Del. Ch. Dec. 13, 2013). The court noted that "[t]he parties did not agree to the 'claw back' of all privileged material that was produced without the knowing intent to do so. Inadvertence was the selected standard." Id. At *6. Fortunately for the producing party, the court found that it had met the "inadvertently" standard. It also met the "promptly" standard. The producing party discovered the mistake during a deposition, and advised the other side at the next deposition break. However, the court then provided a chilling warning: "Had the concern not been raised until after completion of the deposition, the result might be different." Id. At *8.

Litigants negotiating a claw-back order might take different positions on the inclusion of the "inadvertently" and "promptly" standards, but lawyers should keep in mind that those standards are not required.

Case Date Jurisdiction State Cite Checked
2013-12-13 State DE
Comment:

key case


Chapter: 27.1606
Case Name: Jefferson v. Dominion Holdings, Inc., C.A. No. 8663-VCN, 2013 Del. Ch. LEXIS 301, at *4, *6 (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; explaining the context: "During the deposition of Source4's [defendant] Chief Executive Officer, Daniel Siadak ('Siadak'), Source4's counsel recognized that some of the documents used by Jefferson's counsel were privileged. The documents included a cover email from Source4's corporate counsel and a draft response to Jefferson's books and records request. At the next break in the deposition, Source4's counsel advised that the materials were privileged and had been inadvertently produced. Jefferson's counsel agreed to destroy the documents but asserted that they had not been produced inadvertently. In addition, Jefferson's counsel would not agree to delete from the deposition transcript any testimony regarding the materials." (footnote omitted); "The parties did not agree to the 'claw back' of all privileged material that was produced without the knowing intent to do so. Inadvertence was the selected standard.")

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

Chapter: 27.1606
Case Name: Bjorn v. Jerry Erwin Associates, Inc., Case No. 2:13-CV-02419-JWL-JPO, 2013 U.S. Dist. LEXIS 167618, at *5 (D. Kan. Nov. 26, 2013)
(entering a claw-back order that had the "inadvertent" and the "promptly requests its return" standard)

Case Date Jurisdiction State Cite Checked
2013-11-26 Federal KS B 5/14

Chapter: 27.1606
Case Name: Great-West Life & Annuity In. Co. v. Am. Economy Ins. Co., Case No. 2:11-cv-02082-APG-CWH, 2013 U.S. Dist. LEXIS 135750, at *37-38, *42-43, *45 (D. Nev. Sept. 23, 2013)
(finding that a litigant had failed to comply with the timing requirement of a protective order relating to inadvertent disclosures; finding that the parties could have entered into a different kind of protective order; "The Court respectfully disagrees that an order or agreement entered into under Rule 502(d) or (e) requires 'concrete directives be included in the court order or agreement regarding each prong of the [Rule 502(b)] analysis.' . . . The text of the rule does not contain or support such rigid, formulaic requirements. There is no requirement that, in order to supplant Rule 502(b), an agreement provide adequate detail regarding 'what constitutes inadvertence, what precautionary measures are required, and what the producing party's post-production responsibilities are to escape waiver.' . . . In many instances, such requirements would lead to illogical results."; "The Court also rejects the argument that the pertinent language is intended to preserve the applicability of Rule 502(b). There is no need to preserve applicability of Rule 502(b). It applies as a default in the event there is no agreement otherwise. It is not a plausible interpretation for the parties to have negotiated an agreement that Rule 502(b) applies when it applies as a default absent an agreement otherwise. This conclusion is supported by the language of the protective order which states that inadvertent production 'will not waive otherwise applicable claims of privilege or work product protection under applicable law.' The applicable law contemplated by this language would necessarily includes [sic] Rule 502(b). If the parties agreed that there 'will not' be waiver under Rule 502(b), it stands to reason that the analysis need not be undertaken."; "[I]t is the Court's view that the parties' agreement clearly provides that inadvertently produced documents, upon a determination that the documents are privileged, must be returned without waiver to the disclosing party regardless of the care taken by the disclosing party. . . . As a result, the AEI documents are not subject to waiver based on the parties' agreement to supplant analysis under Rule 502(b).")

Case Date Jurisdiction State Cite Checked
2013-09-23 Federal NV B 4/14

Chapter: 27.1606
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 *23, *25 (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; "[C]ourts in the Second Circuit have held that where there is a protective order with a clawback provision, inadvertent production of a document does not constitute waiver unless the document production process itself was 'completely reckless.'" (citation omitted); "[T]he clawback provision of the Protective Order expressly invokes Rule 502(d), not Rule 502(b)."; "There is no indication that the use of the word 'inadvertent,' which represents only the first of three requirements under Rule 502(b), transforms the clawback provision to one identical to the Rule 502(b) standard.")

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

Chapter: 27.1606
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 (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; "Here, paragraph 18 of the Protective Order provides that a party producing a document does not waive any claim of privilege as to that document if its production was inadvertent. Thus, under the terms of the Protective Order, if a party produces a privileged document inadvertently, there is no waiver of privilege and the document can be 'clawed back.'")

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

Chapter: 27.1606
Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 117 (Fed. Cl. 2013)
("In the case presently before the court, however, the Clawback Order entered by the court, which largely incorporated the parties' clawback agreement, provides that it is 'not to be construed to expand or diminish any party's rights or obligations as described in FRE 502.'")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal Other B 3/14

Chapter: 27.1606
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)
(holding that defendant did not have to review all documents for privilege before producing them, because the defendant could use an electronic search terms and arrange for a Clawback Order under Rule 502; "The Clawback Order states that 'in order to facilitate discovery and avoid delays, . . . [t]he producing party is specifically authorized to produce Protected Documents without a prior privilege review, and the producing party shall not be deemed to have waived any privilege or production in not undertaking such a review.'"; "Rule 502(d) provides that a clawback order such as the one in this case, which protects against the waiver of the attorney client privilege or work product protection, will also protect against waiver in 'any other federal or state proceeding.' Fed. R. Evid. 502(d). This amendment seeks to firmly establish the protection against wavier that a clawback order affords and facilitate discovery by reducing the need and costs of pre production privilege review."; " The Clawback Order includes the flowing language: 'The producing party is specifically authorized to produce Protected Documents without a prior privilege review, and the producing party shall not be deemed to have waived any privilege or protection in not undertaking such a review.'"; "[T]his approach would not be appropriate without the existence of the Protective Order and Clawback Order. The Orders protect any inadvertently produced privileged documents from waiver and any nonrelevant documents from use or disclosure outside this litigation. The magistrate judge's order does not require EQT to waive the privilege or the work product protection nor does it require the public disclosure of confidential documents because the Protective Order and the Clawback Order make this impossible." (footnote omitted); "To be sure, there is the potential for privileged or nonrelevant documents to slip through the cracks and be turned over to the other side. EQT argues that this is the real harm it faces if the magistrate's order is allowed to stand. This is an understandable concern. However, the risk of inadvertent disclosure is present in every case, and particularly present in those cases in which the document production is of significant size. Such inadvertent production can occur and does occur whether the documents are searched and reviewed electronically or by human eyes. See FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 479-480 (E.D. Va. 1991) ('The inadvertent production of a privileged document is a specter that haunts every document intensive case.'). EQT has not shown that the use of electronic searching would substantially increase the number of inadvertently produced privileged documents such that electronic searching is an unacceptable form of document review."; "EQT's position is that the only reasonable search for privileged and responsive documents is done by human beings on an individual document basis. As the bulk of trending case law and the recent amendments to the rules indicate, this is an untenable position. See Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003)"; "[T]he magistrate judge was correct in her conclusion that cost-shifting was unnecessary in this case because those costs could be mitigated by the use of electronic searching and production, together with the protections of the Protective and Clawback Orders. Further, EQT has never indicated that it would rather assume the costs of individualized human review and production of the emails. Therefore, it is reasonable to assume that, knowing that costs of review and production will not be shifted to the plaintiffs, EQT would not want to pay such costs and would prefer to rely on the production process outlined by the magistrate judge." (footnote omitted); "I find, however, that certain terms of the magistrate judge's order should be modified to better capture potentially privileged and work-product documents. The magistrate judge's order required the production of all emails sent or received between January 2005 and the present by eight named custodians and which are responsive to a list of search terms. The order further allowed EQT to withhold as potentially privileged any emails to or from a list of names representing inside and outside counsel. (footnote omitted) This privilege limitation will be expanded to include any emails containing any of the listed names within the body of the email. EQT will be allowed to withhold as potentially privileged any emails containing the terms 'privileged,' 'privileged and confidential,' 'attorney-client communication,' or 'attorney work product.' Such limitations should capture forwarded emails and other emails wherein privileged information is discussed. In addition, EQT will also be allowed to conduct preproduction individual document review of all emails sent or received on or after April 20, 2010, the day an earlier and related case, Adkins v. EQT Production Co., et al., No. 1:11CV00031, was filed, in order to ensure that privileged discussion of litigation strategy is not revealed.")

Case Date Jurisdiction State Cite Checked
2012-06-29 Federal VA

Chapter: 27.1606
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 250, 255 (E.D. Va. 2012)
(finding that a party could not rely on a "claw back" order that referred to documents that had been "produced inadvertently"; relying on the holding in the 1998 opinion of McCafferty's Inc. v. Bank of Glen Burnie, Case No. MJG 96 3656, 1998 U.S. Dist. LEXIS 12861, at *5 (D. Md. Apr. 23, 1998)], which explained that: "'An 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.'"; finding that the party had not established that it had "inadvertently" produced documents; "Here, Lawson has not met its burden to show that it is entitled to 'claw back' the eight documents. In its opposition, Lawson addresses only one of the still contested documents, specifically, RQC2008420, and its argument with respect to that document is unpersuasive. Lawson claims that it accidentally produced the document in unredacted form. But, as ePlus points out, Lawson's explanation does not show that the production was 'inadvertent.' Lawson does not deny that it intended to produce the document. And, Lawson does not deny that, when it did finally object to the production of the document, it did so on an entirely different privilege ground than it had asserted in its privilege log."; rejecting the party's argument that the presence of a confidentiality stamp automatically meant that the documents had been reviewed before production; "Lawson argues, with respect to the other documents, that the fact that they have confidentiality stamps on them does not necessarily mean that they were reviewed before being produced. According to Lawson, employees, and not attorneys, may have placed these stamps on them. That is an insufficient basis for establishing inadvertent production. And, the fact that those documents bore confidentiality stamps should have alerted Lawson to the fact that they contained potentially privileged information. Therefore, if Lawson produced them even with those stamps (no matter who did the stamping), it could not have done so 'inadvertently.'"; "More importantly, Lawson does not respond to ePlus's arguments about several specific documents. For example, one of the documents[,] RQC2714397, was produced in redacted form, indicating that, in fact, it had been reviewed by Lawson before production. Another, RQC2657684, was discussed at great length during Mr. Lohkamp's deposition. Counsel for Lawson did not object to the use of significant parts of the document during the deposition which, of course, further undermines Lawson's claim of inadvertent production."; "The record shows that Lawson intentionally produced these documents after reviewing them, and then realized it had mistakenly produced them. However, the Protective Order does not cover 'mistakes.'"; "Moreover, some of the documents at issue were once labeled as privileged but were not claimed to be privileged in subsequent iterations of the log. And, other documents were used in depositions without objection. On the record as a whole, Lawson has not established that the documents at issue were produced inadvertently. They may not be 'clawed back.'")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 4/13

Chapter: 27.1606
Case Name: King Pharms., Inc. v. Purdue Pharma L.P., Case No. 1:08CV00050, 2010 U.S. Dist. LEXIS 54407, at *6 n.3 (W.D. Va. June 2, 2010)
("Purdue contends that King did not properly respond to the notice of inadvertent disclosure under Rule 26(b)(5)(B) and under the Stipulated Protective Order entered in this case because King did not promptly destroy or return the Four Pages. The Rule provides that '[a]fter being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has.' Fed. R. Civ. P. 26(b)(5)(B). The Stipulated Protective Order provides that '[a]ny inadvertently produced privileged materials shall be returned promptly to the Producing Party upon request and all copies destroyed.' (Stipulated Protective Order P 13, Nov. 9, 2009.) In light of my decision, it is not necessary for me to resolve this question, although I note that the Rule does permit the receiving party to 'promptly present the information to the court under seal for a determination of the claim,' which King did.")

Case Date Jurisdiction State Cite Checked
2010-06-02 Federal VA

Chapter: 27.1607
Case Name: Mycone Dental Supply Co. Inc. v. Creative Nail Design Inc., No. C-12-00747-RS (DMR), 2013 U.S. Dist. LEXIS 126336, at *8-9, *10-12 (N.D. Cal. Sept. 4, 2013)
(holding that a third party could not claw back documents because it did not comply with the protective order's deadline for doing so; "The court denies Gel's [third party] clawback request because Gel did not promptly take reasonable steps to rectify the error. Gel took 49 days to send a clawback letter after it discovered the disclosure of at least one of the disputed documents during the Rule 30(b)(6) deposition. Gel has offered a sequence of excuses for this delay, including that Gel sought a second opinion from another attorney, that Gel's 30(b)(6) witness became less available even as she insisted on reviewing the entire production document by document, that Hoffman, one attorney in a two-person firm, was on vacation or busy with other matters, and that no other deadlines were upcoming in this litigation. . . . These excuses do not justify Gel's seven-week delay in sending a recall letter -- at the least, Gel should have recalled the document that was used in the deposition immediately after the deposition and then conducted a more thorough and timely investigation into the rest of the production after the initial clawback request." (footnote omitted); "Gel argues that the delay should be measured starting from when counsel finally confirmed, after investigation, that the documents were privileged, not from the date of Lilley's [patent owner] deposition. . . . Here, Gel took 45 days to research its assertion of privilege before sending its clawback letter. This research covered three or four essentially identical sentences in nine essentially identical form transmittal letters, the author of which was obvious on the face of the letters. Under these circumstances, Gel's delay neither meets the requirements of the protective order nor the requirement under Rule 502(b) that the producing party take 'reasonable steps to rectify the error' of the inadvertent disclosure.")

Case Date Jurisdiction State Cite Checked
2013-09-04 Federal CA B 4/14