Plaintiff Fails to Respond Promptly to Notice of Inadvertent Production, Court Orders Privilege Waived

Brookdale Univ. Hosp. & Med. Ctr., Inc. v. Health Ins. Plan of Greater N.Y., 2009 WL 393644 (E.D.N.Y. Feb. 13, 2009)

In this case, the court was asked to reconsider its prior order compelling defendants to return privileged documents inadvertently produced by the plaintiff.  The court declined to overturn its ruling regarding documents specifically identified by the plaintiff as inadvertently produced and addressed by the court’s prior order.  However, as to documents not identified at the time of the order, the court declared any privilege waived.

On January 15, 2009, defendants informed plaintiff that privileged materials may have been inadvertently produced.  Six days later, plaintiff responded by indicating it did not believe it had produced anything inadvertently, but that it would look again.  The next day, defendants sent a second letter reiterating their concerns.  11 days after first providing notice, defendants requested the court declare all privilege waived.  At the hearing on January 29th, plaintiff was given one day to address the inadvertent production.  The next day, 15 days after first receiving notice of its production of privileged information, plaintiff identified thirty documents it claimed were inadvertently produced and indicated that its search for additional documents was ongoing.

Following the hearing, the court issued an order directing defendants to return or destroy any of plaintiff’s privileged documents in their possession.  Thereafter, defendants filed a motion for reconsideration.

In their motion, defendants asserted that the inadvertent production was not limited to thirty documents but rather could include as many as five hundred email communications between plaintiff and its attorneys.  Plaintiff disputed that number claiming the total would likely be less than 200 documents and asserting its belief that plaintiff’s counsel’s initial response upon learning of the inadvertent production was appropriate in light of several factors, including the confidentiality agreement between the parties, the impending deadlines, and the volume of documents requiring assessment.  Plaintiff did not specifically identify any additional inadvertently produced documents, however.

Considering the arguments of the parties, the court found that “plaintiff’s time to raise the privilege issue has passed” and that its prior order finding against waiver applied only to the thirty documents specifically identified.  The court’s reasoning relied primarily on plaintiff’s failure to act promptly to respond to defendants upon their notice of inadvertent production and failure to promptly identify specific documents to be returned.  As the court noted, per the terms of the parties’ confidentiality agreement, the obligation was on the plaintiff to promptly notify defendants of any inadvertent production and “[w]aiting six days before responding to [defendants’] letter and another nine days before notifying [defendants] of specific documents inadvertently produced was not ‘prompt.’”

The court nonetheless ruled that the thirty identified documents should still be returned to plaintiff but ordered any privilege waived as to any documents that had not been identified by the plaintiff at the time of the hearing.

One Comment

  • One wonders why firms do not filter To/From/Bcc/Cc metadata as the first step of the e-discovery management process.

    Marking these as either “attorney work product” or “attorney-client” privileged email PRIOR to production would allow the appointment of a SINGLE, accountable attorney to review for privilege.

    Why anyone would not take steps to avoid the “good-nature of the magistrate” at a clawback hearing totally escapes me when nearly every e-discovery software package makes it easy to grab the *majority* of privileged content before it is handed over.

    Heck, I’ve nearly finished a tool that does this myself, –so I know it’s not that hard.

Copyright © 2022, K&L Gates LLP. All Rights Reserved.