With Federal Rule of Evidence 502 and case law focusing on the effect of a lawyer’s “inadvertent” production of a protected document, courts must sometimes determine whether the production was “inadvertent.” Rule 502 uses that term, but does not define it.
In North American Rescue Products, Inc. v. Bound Tree Medical, LLC, Case No. 2:09-cv-101, 2009 U.S. Dist. LEXIS 118316 (S.D. Ohio Nov. 19, 2009), the court held that a litigant had not “inadvertently” produced several documents. The court concluded that the litigant “knew it was producing these particular documents” — explaining that “[t]here is a distinction between an inadvertent disclosure and a disclosure that is intended but the person making the disclosure was mistaken or unaware of the consequences of producing the document.” Id. at *24. Several weeks later, another court held that a litigant had “inadvertently” produced a document. Amobi v. D.C. Dep’t of Corr., Civ. A. No. 08-1501 (BEL/TMF), 2009 U.S. Dist. LEXIS 114270 (D.D.C. Dec. 8, 2009). That court rejected the adversary’s argument that “if the disclosure was by a lawyer, then it clearly was not mistaken and not inadvertent.” Id. at *22. The court carefully explained that “[t]he premise of that statement is wrong. Lawyers make inadvertent mistakes: it is judges who never make mistakes.” Id. at *22-23.
Lawyers and their clients hoping to take advantage of the increasingly forgiving rules governing “inadvertent” disclosure must be prepared to explain that they accidentally included the document in the production — not that they mistakenly failed to understand the significance of producing the document.