How Can a Party Accidentally Producing Privileged Documents Prove that it Took Reasonable Steps to Avoid Mistakes?

October 26, 2011

Under Federal Rule of Evidence 502, a party accidentally producing a privileged document can avoid a finding of waiver if it establishes that it took reasonable steps to avoid the accidental production (among other things).

In Thorncreek Apartments III, LLC v. Village of Park Forest, Case No. 08 C 1225, 2011 U.S. Dist. LEXIS 88281 (N.D. Ill. Aug. 9, 2011), the court found the defendant’s explanation of its privilege review insufficient. The court complained that “we have received precious little from the Village: an email written by the Village’s counsel explaining to [Plaintiff] Thorncreek that he ‘spent countless hours reviewing’ a relatively large amount of documents” and marked each one as privileged or not. Id. at *24. The court concluded that “[t]his level of description falls well short of what we would expect for an adequate account of the review procedure.” Id. at *24-25. Eight days later, the District of Columbia District Court reached exactly the same conclusion. In Williams v. District of Columbia, Civ. A. No. 06-02076 (CKK), 2011 U.S. Dist. LEXIS 91380, at *13 (D.D.C. Aug. 17, 2011), the court held that “the District has utterly failed to explain its ‘methodology’ for review and production” – explaining “only that ‘[p]rior to production, this material was reviewed by an experienced litigation paralegal under the supervision of an attorney.'” The court noted that “[i]t should go without saying that this sort of conclusory statement is patently insufficient to establish that a party has discharged its duty of taking ‘reasonable steps’ to guard against the disclosure of privileged documents.” Id.

Corporate litigants who have accidentally produced privileged documents must be prepared to supply a detailed explanation of exactly what steps they took to review the produced documents and prevent such accidental disclosures.