Court Denies Motion to Compel Return of Inadvertently Produced Privileged Materials

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."

Esso contended that in 2005, an electronic file was created for all documents with a VEGAC prefix that were responsive to plaintiffs’ written discovery requests. Similarly, a separate electronic file was created for documents with a VEGAC prefix that were either privileged or not responsive to plaintiffs’ written discovery. In the rush to meet the court’s discovery deadline, the two files were unintentionally merged. As a result, approximately 1,500 potentially privileged documents were inadvertently produced. The documents at issue totaled approximately 2,000 pages and consist mostly of, but are not limited to, emails, letters, notes, pictures, and receipts. None of these items had been previously disclosed to plaintiffs or identified as privileged material on a privilege log.

The court considered five factors in its analysis: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure, (2) the amount of time it took the producing party to recognize its error, (3) the scope of the production, (4) the extent of the inadvertent disclosure, and (5) the overriding interest of fairness and justice.

Reasonableness of Precautions

Esso contended that it “took reasonable precautions to protect its privileged documents by placing them in an electronic file that was not to be produced,” and that it “could not have foreseen or reasonably prevented the errant mouse click that resulted in the inadvertent production.” The court stated it was not persuaded. “Privileged information, like the use of modern technology, in a case involving such a vast amount of documents exchanging hands deserves the utmost attention.”

It noted that Esso pointed to the separation of electronic files as an example of reasonable precautions. The court observed that the great majority of Esso’s documents consisted of handwritten notes of the attorneys which, were scanned and converted to "pdf." format to include them in the folder. It stated: “A quick inspection of the VEGAC file, or part thereof, after it was burned on the disk, however, should have been sufficient to detect at least one of the handwritten notes and ultimately should have pointed out to the attorneys that an error had occurred.”

It further critiqued Esso’s contention that: "Before Esso’s files of responsive documents were burned to a disc, they were electronically screened for documents containing a ‘privileged ‘ code." The court responded: “Even if so, Esso nonetheless failed to screen what was eventually produced to plaintiffs: the disks themselves. A review of the disks, prior to being produced, would have ensured that only the proper documents were copied and, in turn, produced to plaintiffs.” It continued:


This Court is not compelled to protect privileged information inadvertently disclosed by an "errant mouse click." If parties opt to use technological resources to store privilege information, they should also provide the necessary protection for precisely that information.

Amount of Time to Correct Error

The Court could not conceive that during a three to four month period, no one at Esso checked or worked on the VEGAC folder. It concluded that it would be unfair “to deprive plaintiffs of the documents that were produced to them nearly four months beforehand simply because now, someone realized that these were ‘inadvertently disclosed.’" It found that the detriment to plaintiffs factor outweighed Esso’s possible benefit in this instance. “More so, when Esso found out about the inadvertent disclosure (March 14th) a Tuesday, it was not until the Friday of that week (March17) that Esso submitted its Motion for a Protective Order (Docket No.356 and 359).”

Scope of Production and Extent of Inadvertent Disclosure

The court noted that Esso was required to sort and produce approximately 400,000 pages of documents of which 2,000 privileged documents were inadvertently produced. “An occasional inadvertently-produced document or documents would be more comprehensible under the circumstances of such a large production.” The court concluded that the disclosure was dramatic, and that it would be a very expensive, time-consuming and unfair task to deprive plaintiffs from using the vast amount of documents produced to them.

Overriding Interest of Fairness and Justice

While the court was “compelled” by the fact that Esso might well be adversely affected by its ruling, it concluded that the overriding interest of fairness and justice favored plaintiffs:

Esso’s request that this Court do not hold it accountable for its error, which waives a privilege that was in fact created for its own benefit, does not justify the use of judicial resources to solve a problem that might have not have arisen if adequate precautions had been taken in the first place.

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