Courts frequently wrestle with the waiver implications of a party’s accidental disclosure of privileged documents during litigation. Most courts take a fact-intensive approach to this issue, and it is interesting to read a decision that carefully weighs all the factors.
In Semi-Tech Litigation LLC v. Bankers Trust Co., No. 02 Civ. 0711 (LAK), 2002 U.S. Dist. LEXIS 13781, at *6 (S.D.N.Y. Jul. 27, 2002), the same decision assessed three different factual scenarios. Interestingly, the court found that: (1) a party had waived the privilege by copying and producing an obviously privileged document that had been designated by the adversary (without checking the copies); (2) a party had waived the privilege covering approximately 90 documents out of 100,000 pages reviewed, because the party had missed obviously privileged documents, had not prepared a privilege log, and had waited for months before seeking the documents’ return; (3) and that a party had not waived the privilege protecting five documents that slipped through during a large production, noting that “the error was discovered and called to defendants’ attention within 24 hours.” (The court later withdrew the first part of its order “on consent.”)
Lawyers finding themselves in the unfortunate position of having accidentally produced privileged documents should become familiar with the standard that the pertinent court applies.