Electronic Discovery Navigator

Court Ordered Inadvertently Disclosed Privileged Document Destroyed

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."

"Claw-Back": Be Specific and Timely

In re '318 Patent Infringement Litig., Case No. 05-356 (D.Del. Mar. 1, 2007)

This case illustrates the importance of specifying the scope of the right to "claw back" inadverdently produced privileged information, and of timely exercise of that right.  (FRCP Rule 26(b)(5)(B) addresses the claw-back issue.)

The document in question was identified at the deposition and the deponent was questioned about it.  Yet, the moving party argued "that they should be excused from their untimely request for return [of the document] because the document was not really 'used.'"