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Letter, Reassess, Repeat: Avoiding Privilege Waiver After Notice of Inadvertent Production of Documents

Technology today often serves as the crutch upon which students and members of the workforce rely to complete and review assignments.  However, such technology does not always efficiently replace good, old-fashioned human effort.  For instance, the spell-checker in Microsoft Word can alert you to a possible mistake but the decision to continue searching for other mistakes must be made by the user.  Indeed, the existence of even one mistake should alert the reader or provider of a document that other mistakes may be present and prompt that person to reevaluate the rest of work.  The 2009 decision United States v. Sensient Colors, Inc. is a critical example of how damaging the failure to promptly and diligently check for additional mistakes can be for privilege invocations during discovery production.

Background of the Case

            The Sensient Colors case began as a cost recovery action asserted by the United States, on behalf of the Environmental Protection Agency (EPA), against Sensient based on allegations that the EPA was forced to incur substantial costs in responding to the release of hazardous substances caused by the defendant’s site contamination in Camden, New Jersey.  The case quickly evolved into a discovery dispute when the plaintiff was advised that several of the 45, 000 produced documents produced by the Department of Justice and EPA attorneys may be privileged.  The plaintiff confirmed this shortly thereafter and thus kicked off a lengthy unearthing of hundreds of subsequent privileged documents that spanned nearly one year of time.  The court combined the inadvertent productions into three groups: (1) documents identified after initial notice from defendant; (2) documents identified after a second separate notice from defendant; and (3) documents identified subsequent to additional notices from plaintiff.

The court had to assess whether the parties’ Joint Discovery Plan precluded a privilege waiver and, if not, whether a waiver occurred.  The court first found that the Plan did not operate as a blanket provision precluding waiver in all circumstances because such immunization of counsel would lead to “sloppy attorney review and improper disclosure which could jeopardize clients’ cases.”  More importantly, the court found a waiver to occur under Federal Rule of Evidence 502(b) regarding the second and third, but not the first, group of documents produced by the plaintiff because of a failure to promptly and diligently take reasonable steps to rectify the error through follow up of prospective additional mistakes.

Specific Wrongful Conduct and Court’s Treatment

            While the plaintiff was able to establish the elements of FRE 502(b)(1) and (2)—inadvertency and reasonable steps to prevent disclosure—in all groups, the failure to take reasonable steps to rectify the error—FRE 502(b)(3)—after awareness of the first group of inadvertent production, was fatal to the claim.  The court agreed that reasonable rectification was present for the first group of documents identified after the initial notice from defendant because plaintiff responded only eight works days after defendant’s letter (as opposed to many months later for the other groups).  Plaintiff also diligently used a sophisticated computer program to conduct privilege review.  The court reasoned, however, that the “fact that plaintiff confirmed… documents were inadvertently produced was an obvious indication that other privileged documents may have been produced in error.”  Essentially, the court found the first notice from defendant, and subsequent confirmation of inadvertency, was a signal to the plaintiff and “should have spurred plaintiff to promptly re-assess its procedures and re-check [all of] its production” instead of dragging out the process for checking subsequent documents for ten months.

Suggestions to Avoid

            Whether or not computers are utilized to conduct privilege review, mistakes can still clearly be made, especially inadvertent disclosure.  Courts will usually not penalize counsel with waiver for initial inadvertent disclosure but such documents will not be protected when counsel fails to subsequently follow up on production after notice of the mistake.  Indeed, once a party is made aware of and confirms a clear inadvertent production of certain documents, waiver of privilege for other documents subsequently determined to be inadvertent can only be avoided through prompt reassessment of the procedures used and re-examination of all production—even when a sophisticated computer program was used to conduct the privilege review.  With such a lengthy amount of documentation, promptly filing a protective order can go a long way.

Mark Keddis has a B.A. in Psychology with a Certificate of Criminology from Rutgers University in New Brunswick, NJ.  He will receive his J.D. from Seton Hall University School of Law in 2012, where he has served as a member of the Appellate Advocacy Moot Court Board and an Associate Editor for the Seton Hall Law Review.

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