Court Assesses Waiver Implications of a Party Inadvertently Producing Privileged Documents During Litigation

August 22, 2001

Courts take one of three approaches in assessing whether a party waives the attorney-client privilege or work product protection by inadvertently producing privileged documents during litigation. Some courts automatically find a waiver, and some courts find that such a mistake cannot waive the protections because only the client has that power.

Most courts take a middle ground, conducting a fact-intensive review of such factors as the reasonableness of the procedures established to find and withhold privileged documents; the number of documents that were inadvertently produced; and the speed with which the producing party sought the documents’ return. For instance, in the recent case of In re Copper Market Antitrust Litigation, 200 F.R.D. 213, 222 (S.D.N.Y. 2001), the court held that the inadvertent production of 17 documents out of 583 documents claimed to be privileged (with 15,000 documents having been produced) did not waive the privilege. The court explained that the number of privileged documents which were inadvertently produced was “relatively small in comparison with the total production,” and that the producing party sought the documents’ return just one day after discovering that they had been mistakenly produced.

Although it would be best if no privileged documents were inadvertently produced, the possibility of mistakes should prompt all lawyers to become familiar with the factors relied upon by the pertinent courts.