Archive: February 9, 2009

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Despite Alleged Inadvertence of Production, Court Finds Privilege Waived Absent Evidence of Reasonable Precautions

Despite Alleged Inadvertence of Production, Court Finds Privilege Waived Absent Evidence of Reasonable Precautions

SEC v. Badian, 2009 WL 222783 (S.D.N.Y Jan. 26, 2009)

In this case, Rhino Investors, Inc. (“Rhino”), a non-party, sought to claw back approximately 260 documents that it claimed were inadvertently produced in 2003 in the midst of an SEC investigation.  The court, applying the four factors set forth in Louis Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985) and its progeny, concluded that Rhino had waived any privilege it may have asserted.

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