Applying Rule 502: How Quickly Must a Producing Party Seek Return of an Inadvertently Produced Document?

June 29, 2011

Under Federal Rule of Evidence 502, courts analyzing whether an inadvertent production waived the privilege consider, among other things, how promptly the producing party took remedial steps. Some courts require the producing party to seek judicial intervention to retrieve the document, while other courts consider it adequate for the producing party to ask the receiving party for the document’s return.

Even courts taking the latter approach disagree about how quickly the producing party must act. In Martin v. State Farm Mutual Automobile Insurance Co., Case No. 3:10-cv-0114, 2011 U.S. Dist. LEXIS 36058, at *14 (S.D. W. Va. Apr. 1, 2011), the court noted that State Farm realized it had inadvertently produced a privileged document when the other side used it in a deposition, but “did not express any interest in protecting the letter.” The producing party did not ask for the document’s return until five days later. For this and other reasons, the court found a waiver. Just two weeks later, another court dealt with essentially the same scenario. Explaining that “the steps taken to preserve privilege need not be perfect; they must only be reasonable,” the court noted that the producing party sought return of the inadvertently produced documents six days after realizing its mistake. Valentin v. Bank of N.Y . Mellon Corp., No. 09 Civ. 9448 (GBD) (JCF), 2011 U.S. Dist. LEXIS 40711, at *7 (S.D.N.Y. Apr. 14, 2011). The court concluded that “[t]his sequence does not reflect an undue delay and does not warrant forfeiture of the privilege.” Id. at *9.

For obvious reasons, it is always best to immediately seek return of any accidentally produced document. The producing party should also confirm whether the court handling the litigation requires filing of a motion rather than just a communication to the other side.