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Federal Judge in Illinois Denies Media Group’s Motion to Intervene Under FRCP 24(b)

Despite the importance of the general right to public access of court proceedings, a federal judge in Illinois ruled that a media group could not intervene in a lawsuit because, although it had standing, intervention would cause undue prejudice.

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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.

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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.  

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Video eLesson: Stengart v. Loving Care (Decided March 30, 2010)

This is the second video by Joscelyn from the eLessons Learned series on Stengart, dealing with the March 30 New Jersey Supreme Court decision favoring privacy over waiver of attorney-client privilege.

Use a Fine-Tooth Comb Before and After Document Production

The document reviewing attorney is charged with an unenviable task: Review thousands of documents to ensure that no privileged information is produced to opposing counsel.  Given the fact that document productions may consist of thousands or even millions of pages of documents, it is not surprising that privileged documents will slip by the watchful, often weary, eye of reviewing attorneys – it is inevitable. Not to worry, the Federal Rules of Evidence are sympathetic to those tired eyes.  Inadvertently produced privileged documents do not automatically lose their privilege protection.  However, it is important to note that although FRE 502 allows some wiggle room for error, the attorney for the producing party must be careful.  Failing to take reasonable steps to prevent inadvertent disclosure, or failing to promptly identify privileged documents that had been produced mistakenly can result in the waiver of highly privileged documents, oftentimes a deathblow to an otherwise winnable case.

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