Federal Rule of Evidence 502 prohibits federal courts from automatically finding that a party accidentally producing a protected document waives the protection. However, the Rule likewise does not automatically allow that party to retrieve the accidentally produced protected document.
In United States v. Sensient Colors, Inc., Civ. A. No. 07-1275(JFR/JS), 2009 U.S. Dist. LEXIS 81951 (D.N.J. Sept. 9, 2009), the court analyzed the United States’ accidental production of 214 protected documents out of 45,000 documents produced to defendants. In applying Rule 502, the court found that the government had taken reasonable steps to prevent accidental disclosure of some of the documents. However, the court criticized the government for not having rechecked its production after initially learning that it had accidentally produced protected documents. Although a Note to Rule 502 states that a producing party need not engage in a post-production review, it also requires that a producing party must “‘follow up on any obvious indications'” of an accidental production. Id. at *23. The court held that after the government learned of its accidental production of some protected documents, it “should have taken prompt and diligent steps to re‑assess its document production” — and therefore could not retrieve any of the protected documents later found to have been included in the government’s production. Id. at *22.
Litigants should not assume that Rule 502 will automatically forgive their mistakes. They must still follow up if they find that they have accidentally produced protected documents.