Proposed Federal Rules Changes Will Not Save Litigants From the Consequences of Their Mistakes: Part 1

October 3, 2007

Federal Rule of Civil Procedure 26(b)(5)(B) already permits litigants to assert privilege or work product claims after they produce documents, and proposed changes to Federal Rule of Evidence 502 would add additional opportunities for litigants to avoid disastrous effects if they unintentionally produce protected documents during discovery. However, no Rules changes are likely to totally save litigants from adverse consequences if they are not careful.

In Kingsway Financial Services, Inc. v. Pricewaterhouse-Coopers LLP, No. 03 Civ. 5560 (RMB) (HBP), 2007 U.S. Dist. LEXIS 46660 (S.D.N.Y. June 22, 2007), the court had entered a protective order allowing either party following a certain protocol to retrieve inadvertently produced privileged documents. Kingsway discovered that it had accidentally produced a privileged e-mail, and sought its return. Kingsway attached a copy of the privileged e-mail to its correspondence to the court (filed under seal), but also attached a copy of the e-mail to the service copies sent to defendants. The court found that Kingsway’s initial production of the e-mail might have been inadvertent, but that Kingsway’s “attachment of the E-Mail to the service copies was evidently deliberate” — which waived the privilege. Id. at *7. The court did not address the fact that presumably all the defendants already had the e-mail because it had been accidentally produced.

The protective order entered in Kingsway provided essentially the same protocol as that articulated in the new and proposed federal rules changes. It would be safe to assume that a litigant governed by these new rules would face the same fate as Kingsway if it made the same mistake. Next week’s Privilege Point will provide another example.