Marrero Hernandez v. Esso Standard Oil Co., 2006 WL 1967364 (D. Puerto Rico July 11, 2006)
In this opinion, the court used a five-factor test to conclude that the defendant’s “inadvertent” production of privileged materials effected a waiver.
On March 14, 2006, a third-party defendant in the case filed a motion for permission to file a counterclaim against Esso. Attached to the proposed counterclaim were several documents that were stamped with the prefix "VEGAC." Those documents had been disclosed by Esso during the months of November and December 2005. Three days later, Esso recognized the exhibits as privileged and claimed that they were inadvertently produced due to an "errant mouse click."