Effect of a “Non-Waiver” Agreement Among Litigants Producing Documents to Each Other

November 15, 2000

Some litigants producing documents to each other enter into “non-waiver” agreements under which they contractually bind themselves to return inadvertently produced documents. One recent case discussed such an agreement.

In United States Fidelity & Guaranty Co. v. Braspetro Oil Services Co., Nos. 97 Civ. 6124 (JGK)(THK) and 98 CIv. 3099 (JGK)(THK), 2000 U.S. Dist. LEXIS 7939 (S.D.N.Y. June 7, 2000), defendants inadvertently produced several privileged documents. They sought the documents’ return under a “non-waiver” agreement, but the plaintiffs balked.

The court noted that the standard legal approach to the inadvertent production of privileged documents examines such factors as the care the producing party took to exclude the privileged documents, the number that escaped detection, the speed with which the producing party sought their return, etc. Id. at *19-25. The court recognized that a non-waiver agreement “did not merely incorporate the caselaw standards governing inadvertent waiver, because, if it did, the provision would have no effect.” Id. at *15 (relying on Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No. 96 Civ. 7590 (DAB)(JCF), 1997 U.S. Dist. LEXIS 18818, at *10 (S.D.N.Y. Nov. 26, 1997)). Instead, the court held that to fall below the “inadvertent production” standard defined in the non-waiver agreement, a litigant would have to act “completely recklessly in producing privileged documents.” Id. at *17.

Although applicable law might require return of an inadvertently produced privileged document, litigants should always consider entering into a “non-waiver” agreement that provides an extra level of protection.