Tag:FRCP 26(b)(5)(B) or FRE 502

Key Insight: Where defendant previously stored privileged materials on the computer of a third-party business partner and where the relationship later soured, defendant inadvertently waived claim of privilege as to privileged ESI by failing to take prompt steps to protect the privileged materials following clear notice that the protections he had placed (passwords, etc.) were no longer in place and by persisting in that failure to protect the material for a number of years thereafter

Nature of Case: Alleged improper excercise of authority by trustee

Electronic Data Involved: Electronic documents

Key Insight: Where defendant produced a partially redacted document containing four inadvertently unredacted pages, court found that the disclosure met the test of 502(b) and that privilege was not waived ?in light of the low volume of production? and defendant?s prompt action to ?rectify the error? upon learning of the disclosure; court also stated that ?the fact that the document had been reviewed and partially redacted does not by itself prevent the disclosure from being inadvertent? and that ?[t]he nature of the mistake in disclosing a document is not limited by the rules, and logically ought to include mistaken redaction, as well as other types of mistakes that result in disclosure.?

Nature of Case: Patent litigation

Electronic Data Involved: Four unredacted privileged pages of printed presentation

Key Insight: Court found production of privileged documents was ?inadvertent? within the meaning of the parties? stipulated protective order and that the privilege was therefore not waived where defendant took reasonable steps to prevent the inadvertent production, including creating and following a document review protocol, identifying privileged names to assist in the segregation of potentially privileged documents, and requesting that certain key words searches be used to identify potentially privileged information and where defendants took prompt steps to retrieve the privileged documents upon discovering their disclosure; district court affirmed the order, noting that the review was ?obviously complicated? by the fact that ?many or most of the documents were in Japanese and had to be obtained from Japan?

Nature of Case: Putative class action alleging unfair business practices and related claims in connection with design of toner cartridges

Electronic Data Involved: Inadvertently produced ESI

Key Insight: Considering the large volume of materials produced, defendants? efforts to review materials prior to their production (including using 16 review associates supervised by two senior associates), and the complicated nature of certain privilege issues (including the number of law firms implicated in the relevant correspondence), court found no waiver of privilege resulting from the inadvertent production of 184 documents and denied plaintiffs? motion for an order invalidating defendant?s claims of privilege

Nature of Case: Claims arising under the Employment Retirement Income Security Act of 1974 (ERISA)

Electronic Data Involved: Privileged ESI

Key Insight: Where plaintiff had previously produced a particular two page letter in prior litigation but was unaware of that production because it was not used in any deposition or pleading in that case, and where plaintiff?s counsel agreed, in subsequent litigation, to produce those documents that were previously produced in the prior litigation, which included the letter, and did not conduct a privilege review because of the belief that such a review had been conducted before production in the prior litigation, the court found that plaintiff did not take reasonable steps to prevent the disclosure and therefore waived privileged and reasoned, in part, that ?[m]erely asserting that prior counsel inadvertently disclosed the letter does not meet the burden of proof,? citing Plaintiff?s failure to describe the circumstances surrounding the letter?s original production or any steps to prevent the disclosure

Electronic Data Involved: two page letter