Most courts apply a fact-intensive analysis in deciding whether a litigant’s unintentional production of protected documents during litigation waives the attorney-client privilege or work product protection. In addition to assessing the producing party’s review process, the number of documents that slipped through and the extent of disclosure, most courts also examine how quickly the producing party sought to retrieve the accidentally produced documents.
Courts disagree about what steps the producing party must take under this prong of the fact-intensive approach. In Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371 (7th Cir. 2008), the Seventh Circuit found that the producing party had carefully set up and followed its review process, and that it had accidentally produced only one privileged document (a memorandum from the Seyfarth Shaw law firm) out of 30-40 boxes of documents produced. The court also concluded that the producing party’s remedial measures weighed against a finding of waiver. The court noted that (1) three days after the receiving party used the Seyfarth Shaw memorandum as an exhibit to a pleading, the producing party “sent an email to [the receiving party’s] counsel . . . asking for an explanation as to how [it] came into possession of the document,” and (2) the producing party contacted the receiving party “again in December to ascertain the source of the memorandum, asserting that the memorandum is covered by the attorney-client privilege.” Id. at 389. The court concluded that “[i]t appears counsel for [the producing party] took steps to rectify the error immediately upon learning of the disclosure.” Id.
Although some courts require the producing party to seek some judicial relief in retrieving accidentally produced documents, the Seventh Circuit set a fairly low standard — apparently requiring only that the producing party send the receiving party some communication asserting the protection.