Archive: May 24, 2012

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Expert’s Inadvertent Production Results in Waiver of Privilege Absent Sufficient Supervision by Counsel or Prompt Steps to Rectify Disclosure

Expert’s Inadvertent Production Results in Waiver of Privilege Absent Sufficient Supervision by Counsel or Prompt Steps to Rectify Disclosure

Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2012 WL 1392965 (W.D.N.Y. Apr. 19, 2012)

In this case, the court addressed whether inadvertent production of an email by an information technology expert waived the attorney-client privilege.  Finding that the plaintiff neither took reasonable steps to prevent the email’s disclosure nor acted promptly to rectify the error upon its discovery, the court held that privilege was waived.

Plaintiff claimed that the at-issue email was inadvertently produced by an information technology expert who was hired to recover a particular document from a computer at plaintiff’s counsel’s office and who was instructed to produce that document to the digital forensic consulting firm retained by the defendants.  Specifically, plaintiff alleged that the expert mistakenly copied and produced (on CD) both the document he was instructed to recover and the privileged email to which it was attached.  Interestingly, defendants’ consultant claimed never to have received the CD and instead explained that the email and the attachment were forwarded directly from plaintiff’s counsel’s email account, with a short note from the expert.  Regardless of how the email was produced, approximately two weeks later, the recipient consulting firm disseminated the email in its native format to all parties to the action.  More than two months later, plaintiff claimed that the email was inadvertently produced and requested it be returned or destroyed.

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