Can The Flu Affect A Waiver Analysis?

April 17, 2019

Fed R. Evid. 502 adopts the earlier majority common law view, finding that the inadvertent production of documents does not waive privilege or work product protection if:  (1) it was inadvertent; (2) the protection holder "took reasonable steps to prevent disclosure"; and (3) "the holder promptly took reasonable steps to rectify the error."  In analyzing the last factor, courts understandably assess the context.  Most if not all courts start the rectification clock ticking when the holder learns of the inadvertent disclosure.  After that, the holder must act quickly.

In Ranger Construction Industries, Inc. v. Allied World National Assurance Co., the defendant inadvertently included several privileged documents in a December 20 production – which the court helpfully noted was "right before the Christmas holiday." Civ. No. 17-81226-CIV-Marra/Matthewman, 2019 U.S. Dist. LEXIS 18617, at *19 (S.D. Fla. Feb. 5, 2019).  Eight days later, plaintiff's lawyer alerted her counterpart that the production included possibly privileged documents.  The court acknowledged that plaintiff's lawyer had not provided those documents' Bates numbers, but explained that "she was ill with the flu over the holidays and ultimately hospitalized, which certainly accounts for any alleged deficiency in the letter."  Id. at *20. Because "Defendant's counsel's office was closed for the holidays until January 2," the lawyers did not confer until that day – at which time defendant's lawyer acknowledged the inadvertence, and sought the documents' return.  Id. at *19.  The court ultimately concluded that defendant's lawyer "took reasonable steps to rectify the error" – thus avoiding a privilege waiver despite the nearly two-week delay since the production.  Id. at *21.

Not all courts would be this generous, so litigants who inadvertently produce protected documents should immediately alert the recipient and at least demand their return or destruction.

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