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.