Court Denies Motion to Exclude Inadvertently Produced Email, Rejects Argument that 26(b)(5)(B) Request for the Email’s Return Satisfied FRE 502(b)(3) Obligation

Williams v. District of Columbia, 806 F. Supp. 2d (D.D.C. 2011)

In this case, the court denied the defendant’s motion to exclude an inadvertently produced email where the defendant failed to satisfy the burden of establishing that reasonable steps were taken to prevent disclosure and where the defendant failed to promptly take reasonable steps to rectify the error.  In so holding, the court rejected the defendant’s argument that its actions pursuant to Rule 26(b)(5)(B) (i.e. sending a written request for the return of the email) were sufficient to discharge its obligations under FRE 502(b)(3).

In this case arising from claims of retaliation in violation of the District of Columbia Whistleblower Protection Act, the defendant produced a “recommendation to terminate packet” which contained a privileged email.  The email was located within the first ten pages of the packet.  Five months later, after realizing it’s mistake, the defendant wrote to the plaintiff requesting the return of the email pursuant to Rule 26(b)(5)(B).  The plaintiff did not respond and the defendant did not follow up.  More than two years later, when the email was identified as an exhibit for the plaintiff, the defendant filed a motion to exclude.

After ordering additional briefing from the parties, including on the issue of whether requesting the return of inadvertently privileged material pursuant to Rule 26(b)(5)(B) was “necessary or sufficient (or neither) for a party to discharge its obligations under Rule 502(b)(3),” the court denied the defendant’s Motion to Exclude. (FRE 502(b)(3) requires a party who has inadvertently produced a privileged document to “promptly” take “reasonable steps to rectify the error, including, if applicable following Federal Rule of Civil Procedure 26(b)(5)(B)” to avoid waiver.)

First, the court addressed the question of whether the defendant took reasonable steps to prevent disclosure and noted that it was the defendant’s burden to prove that it did.  Citing the defendant’s reliance on “unsworn averments” of counsel who had not been involved with the case during the relevant time, the defendant’s failure to explain its methodology for its review and production and, more specifically, the defendant’s failure to provide “a concrete sense” of the number of documents reviewed and produced or to provide a "clear picture of the demand placed upon it by virtue of" the document requests and the timetable of production, the court held that the defendant did not meets its burden.  The court’s analysis also identified “the sort of considerations one would expect to be relevant” to the question of whether reasonable steps were taken, including when the review occurred, how much time was allocated to review, the nature of the reviewers’ experience, the extent of supervision, whether the review included multiple rounds, and how privileged information was segregated, for example. No such information was provided by the defendant.

Next, the court addressed the question of whether the defendant promptly took reasonable steps to rectify its error.  The defendant asserted that its actions pursuant to Rule 26(b)(5)(B), namely sending a request for the return of the email, were sufficient to satisfy its burden, but cited no authority to support its position.  Accordingly, the court rejected the defendant’s argument and found that reasonable steps were not promptly taken.  In so holding, the court noted that there may be circumstances in which a 26(b)(5)(B) request would constitute a sufficiently reasonable step to rectify the error, but that it was not the case here.  Specifically, the court cited the defendant’s failure to take further action after the plaintiff failed to respond to its request and the delay of two years and eight months before it filed for court intervention.  Such a long wait, the court reasoned, is “the sort of indifference” that is “fundamentally at odds with the principle that the attorney-client privilege ‘must be jealously guarded by the holder . . . .’”

Accordingly, the defendant’s Motion to Exclude was denied.