Does a Different Waiver Analysis Apply to an Inadvertent Production Under a Non-Waiver Agreement?

December 3, 2008

Many litigants enter into what are called “non-waiver agreements,” under which a party’s unintentional disclosure of a privileged document does not trigger a waiver. Although such agreements do not bind non-signatories (unless incorporated into a court order), the agreements clearly provide a benefit to parties engaged in large document productions.

Most parties entering into non‑waiver agreements insist that the producing party take some care in reviewing the documents to be produced. Otherwise, the producing party could simply turn over a million e‑mails without conducting any privilege review. Some courts have added their gloss to this issue. In Employers Insurance Co. of Wausau v. Skinner, No. CV 07-635 (JS) (AKT), 2008 U.S. Dist. LEXIS 76620, at *2 (E.D.N.Y. Sept. 17, 2008) (citation omitted), the court addressed a non‑waiver agreement in which the parties agreed that an “‘inadvertent production'” of protected documents did not cause a waiver. The court held that the accidental disclosure of a privileged document under such a non-waiver agreement does not cause a waiver unless the disclosure was “‘completely reckless.'” Id. at *21 (citation omitted).

New Federal Rule of Evidence 502 allows a court to enter an order which prevents an adversary from claiming waiver upon any disclosure of a protected document — regardless of the care that the producing party took before disclosing the document. As a practical matter, however, most parties and courts may continue to hold the producing party to at least a minimal standard of care.