(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 |