In federal court and in state courts following the same approach, Fed R. Evid. 502(b) sometimes allows claw backs if a privileged document’s production was “inadvertent.” That term could have several meanings — ranging from a mistaken legal analysis to accidental inclusion of the document in a production.
In T&W Holding Co. v. City of Kemah, Civ. A. No. 3:22-cv-00007, 2022 U.S. Dist. LEXIS 206798 (S.D. Tex. Nov. 15, 2022), the court noted that Fed. R. Evid. 502(b) does not define the term “inadvertent.” The court described two approaches that courts can take: (1) assessing “several factors,” such as the document production’s volume, the review process and the producing party’s retrieval efforts — some of which already appear as other Rule 502(b) factors; (2) using a “simpler” approach — “asking . . . whether the production was a mistake.” Id. at *7-8 (citation omitted). The court “wholeheartedly agree[d]” with the second approach. Id. at *8. The court explained that “[a]s a former trial lawyer,” he understood that “mistakes are inevitable” in large document productions. Id. at *8-9. But the court noted that in this case the litigant only produced a few hundred pages, and that it “produced the same privileged document not once, but twice, further indicating that the production was not an isolated mistake.” Id. at *9. This meant that the litigant’s lawyer must have “made a conscious decision to identify certain documents as those they may rely on in this case, and they cannot now run away from that decision claiming mistake or inadvertence.” Id. at *10.
Under this unforgiving approach, only logistical or clerical mistakes presumably satisfy the “inadvertent” element — not a legal misunderstanding or later regret. But the waiver analysis presumably then turns to the other Rule 502(b) factors.