Showing 356 of 356 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: 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, 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: 27.802

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: 27.803

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.")