Electronic Discovery Law
Court Declines In Camera Review and Orders Defendants to Revise Privilege Log Entries so that Court and Plaintiff Could "Test the Merits" within the Four Corners of the Privilege Log Itself
United Investors Life Ins. Co. v. Nationwide Life Ins. Co., 233 F.R.D. 483 (N.D. Miss. 2006)
In this decision, the court discussed the plaintiff's motion for in camera review of documents inadvertently produced by the defendants, the general requirements of privilege logs, the elements of various privileges and protections, and the factors to be considered in determining whether inadvertent production of privileged material effects a waiver.
At the outset, the court declined to grant an in camera inspection since there were "potentially hundreds, perhaps thousands, of documents which would require review." Instead, the court ordered defendants to revise their privilege log entries to include each element of a claimed privilege or protection so that the court and plaintiffs would be able to "'test the merits' within the four corners of the privilege log itself."
The court noted that Mississippi state courts had not spoken to the issue of waiver of the attorney-client privilege by inadvertent disclosure, but that the Fifth Circuit addressed the issue in Alldread v. City of Grenada, 988 F.2d 1425, 1433 (5th Cir. 1993). Because Mississippi state courts often utilize Fifth Circuit law where state law is silent, the court found Alldread to be proper authority on the matter. The court described the "non-exhaustive" Alldread factors as follows: (1) the reasonableness of precautions taken to prevent disclosure; (2) the amount of time taken to remedy the error; (3) the scope of discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness. The court noted that, as to the second item, the amount of time taken to remedy the error would be measured from the time when counsel realizes that there has been an inadvertent production.
The court noted that defendants discovered they had inadvertently produced one of the contested emails when plaintiff's counsel introduced it at a deposition, and that defendants had immediately requested its return. Four days after the deposition, defendants learned of other inadvertently produced documents and requested their return. Later, defendants learned of the inadvertent disclosure of ten other documents when the plaintiff attached them to a reply brief; the court again noted that defendants requested their return "without delay." Thus, it concluded that the second factor weighed in favor of defendants.
The court found that the third factor (scope of discovery) also favored defendants, since the parties had produced some 4,600 documents in the first phase of bifurcated discovery. It found that the fourth factor favored plaintiff, since a great deal of information had been conveyed by the inadvertently produced documents.
On the whole, the court concluded that the sum of factors weighed against the plaintiff. It ruled that the defendants had not by inadvertent disclosure waived their right to any attorney-client privilege or work product protection. It ordered plaintiff, no later than March 6, 2006, to return the inadvertently produced documents to defendants and destroy every copy of each returned document. It further prohibited plaintiff from using any information from portions of the returned documents.
In closing, the court warned defendants that they would subject themselves to the imposition of sanctions if they erroneously asserted a privilege or protection in the future. It continued: "From this point forward, the court will not grant time to amend any privilege log and will simply strike those assertions that do not clearly conform to the applicable rules."
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