Courts take one of three basic positions on whether an inadvertent production of a protected document waives the protection: (1) because only clients can waive a protection, the lawyer’s mistake never causes a waiver; (2) because something obviously went wrong if a protected document was inadvertently produced, such a production always causes a waiver; or (3) determining whether the production causes a waiver requires a fact-intensive analysis. The vast majority of courts follow the third approach.
Under the majority approach, most courts examine the litigant’s process for reviewing documents; whether the litigant carefully followed the process; how many documents slipped through; and how quickly the litigant sought their return. Although the majority approach focuses on these basic factors, some courts cannot resist the temptation to create their own multi-part tests. For instance, in the span of just three days, the District of New Jersey articulated a five-part test, the Northern District of Illinois articulated a three-part test, and the Southern District of New York articulated a four-part test. Amersham Biosciences Corp. v. PerkinElmer, Inc., Civ. A. No. 03-4901 (JLL), 2007 U.S. Dist. LEXIS 6841 (D.N.J. Jan. 31, 2007) (not for publication) (finding a waiver); Voris v. Creditor’s Alliance, Inc., No. 05 C 6840, 2007 U.S. Dist. LEXIS 6913 (N.D. Ill. Jan. 31, 2007) (finding a waiver); Long v. Marubeni Am. Corp., No. 05 Civ. 639 (GEL)(KNF), 2007 U.S. Dist. LEXIS 8032 (S.D.N.Y. Feb. 2, 2007) (finding no waiver).
New Fed. R. Civ. P. 26(b)(5)(B) allows the post-production assertion of privilege or work product protections, but does not adopt any particular test for assessing the waiver impact. Because mistakes are almost inevitable in today’s massive document productions, lawyers must be familiar with the pertinent court’s approach.