What Factors Do Courts Consider When Analyzing the Waiver Implications of Accidentally Producing Privileged Documents?

October 21, 2020

Courts assessing the waiver implications of a litigant accidentally producing privileged documents normally look at several factors: (1) Did the producing party adopt a reasonable protocol for identifying and withholding privileged documents? (2) Did the producing party follow that protocol? (3) How many documents slipped through? (4) How quickly did the producing party seek their return? Within that general framework, courts have adopted various other measures for assessing a producing party’s diligence (and thus the mistaken production’s waiver implication).

In Ocean Garden Products Inc. v. Blessings Inc., Nos. CV-18-00322-TUC-RM & CV-19-00284-TUC-RM, 2020 U.S. Dist. LEXIS 122355 (D. Ariz. July 13, 2020), the court held that defendants had not waived their privilege protection by accidentally producing several documents they later claimed deserved privilege protection. Among other things, the court applied an analysis some other courts have adopted – calculating the percentage of accidentally produced documents that the defendants claimed were privileged: “although [defendant] does not describe in detail its initial privilege review, the fact that the inadvertently disclosed documents constituted less than 0.14% of a production totaling over 30,000 pages is sufficient to show that [defendant’s] initial privilege review was reasonably effective in preventing the disclosure of privileged documents.” Id. at *13.

Although all courts now seem to have settled on the basic principles governing the waiver implications of accidentally producing privileged documents, litigants and their lawyers must be familiar with variations in those general analyses.