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.

Pursuant to Fed. R. Evid. 502, whether inadvertent production will result in waiver is dependent upon several factors, including whether “the privilege holder took reasonable steps to prevent disclosure” and whether “the privilege holder took reasonable steps to rectify the error.”  Here, the court found that reasonable steps were not taken to prevent the error because of counsel’s failure to adequately supervise the expert’s recovery and production efforts (Counsel: Argentieri, Expert: Flaitz):

With regard to the first element, Argentieri, by failing to personally supervise Flaitz’s retrieval of the LawsuitOverview.pdf filed from the computer in Argentieri’s law office in Hornell, while Argentieri was in California, also failed to take reasonable steps to prevent the inadvertent disclosure of the March 6, 2011 email.  Although Argentieri cannot be admonished for retaining the services of Flaitz to retrieve from Argentieri’s Hornell law office, while Argentieri was in California, information responsive to Defendants’ discovery requests, Argentieri could have had Flaitz first forward any documents to Argentieri in California where Argentieri could have reviewed the documents to ensure there was no extraneous, privileged materials attached.  If Argentieri’s physical presence in Hornell was necessary to properly and thoroughly oversee the production of evidence, Argentieri, as lead counsel in this high-profile case, should have made himself present to do so, and Argentieri has not proffered any explanation at to why his presence was not possible.

The court also found that plaintiff was “unable to establish he took reasonable steps to remedy the inadvertent disclosure” where more than two months passed between the broad dissemination of the privileged email and the request for the email’s return or destruction.

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