Court Issues a Troubling Decision Involving Non-Waiver Protective Orders

May 14, 2003

Many litigants arrange for agreements or protective orders that obligate all parties to return privileged documents that are “inadvertently produced” during document productions. Although such arrangements probably do not protect a producing party from a waiver argument asserted by a non-signatory, many litigants think that these arrangements take most of the worry out of document productions.

However, one court analyzing the accidental production of documents under such a protective order read the language literally, and assessed whether the accidental production was truly “inadvertent.” In VLT, Inc. v. Lucent Technologies, Inc., No. 00-11049-PBS, 2003 U.S. Dist. LEXIS 723, at *7 (D. Mass. Jan 21, 2003), the court found that some of the mistakes were “grossly negligent” (not “inadvertent”) and therefore outside the protective order’s non-waiver provision. The court warned that litigants “should specify precisely the kinds of conduct covered” by any non-waiver provision. To make matters worse, the court found that the accidental production of some documents created a subject matter waiver.

Litigants should carefully craft non-waiver agreements in light of this harsh new case.