Pierce v. Girl Scout of Greater New York, Inc., Case No. 06-cv-05456 (S.D.N.Y. Mar. 9, 2007)
This discovery dispute shows how the court would handle an inadvertent disclosure of privileged information where no claw-back agreement exists between the parties. (FRCP Rule 26(b)(5)(B) addresses the claw-back issue.)
Defendants sought sanctions and a protective order to require Plaintiff to return or destroy a single privileged email that was inadvertently produced in discovery. The email was an inquiry seeking legal advice and the response from Defendants' counsel, which the court concluded was "a privileged communication."
The court was persuaded by Defendants' explanation of their inadvertent disclosure of the privileged email.
The defendants have shown that, in the context of the issues presented, the volume of discovery, and the complexity of this case, they used a reasonable degree of care to prevent inadvertent disclosure of privileged communications, and acted promptly to rectify the error in making the disclosure when they learned of the error.
Although Defendants also proved that Plaintiff's counsel agreed to destroy and not use the email in their initial communication, the court did not find this evidence necessary to grant Defendants' protective order. In fact, the court rejected Plaintiff's counsel's position that the email was not privileged and that he had not agreed to destroy it in a subsequent letter to Defendants.
Even if that change in position was made in good faith, the defendants have shown that they are entitled to a protective order given that the document is privileged and was inadvertently produced. (Emphasis added.)
The court denied Defendants' request for sanctions, which was based primarily on Plaintiff's counsel's reversal of his position, because there remained "a possibility, albeit slim, that counsel misunderstood each other[.]"
Takeaway:
To retrieve or have opposing counsel destroy an inadvertently produced privileged document, where no claw-back agreement exists between the parties, at the least the following must be established before the court:
1. the issues involved in the case;
2. the volume of discovery;
3. the complexity of the case;
4. a reasonable degree of care was used to prevent inadvertent disclosure of privileged communications; and
5. the producing party acted promptly to rectify the error in making the disclosure when it learned of the error.
