In this case, the court found that privilege was waived where Plaintiff failed to take reasonable steps to prevent the inadvertent disclosure of privileged materials.
The court’s determination that counsel did not take reasonable steps to prevent disclosure is based, in part, on the rapidity of the alleged review “each document received, on average, only 9.84 seconds of review”, and the plaintiff’s failure to produce a privilege log, among other things.
Upon the defendant’s demand, plaintiff’s counsel supplemented prior production by producing 1500 additional pages.
“The production did not include a privilege log or explanatory transmission identifying that FTC [the plaintiff] had withheld or culled protected information”. However, defense counsel noticed that many documents “carried hallmarks of privilege” and thus notified the court.
Plaintiff asserted that 45 pages had been inadvertently produced and were protected by privilege.
The court analyzed the question of waiver pursuant to FRE 502(b) and determined that plaintiff counsel had not taken reasonable steps to prevent disclosure.
“The reasonableness of preventive steps surely includes both a design and an implementation component. Theoretical or intended measures may sound sufficient, but failure to implement such measures by reasonable execution could empty an ostensibly valid process of any real efficacy. A cross-country driver with a stated plan to obey all traffic laws, but who in actuality drives 100 mph at night with his lights off has not taken reasonable steps to prevent an accident”.
Counsel indicated that a page-by-page review of the materials was conducted and “made decisions on the applicability of protection”, and that he could “only speculate” as to how the privileged documents were nonetheless produced.
Examining counsel’s representations, the court determined that on average, each document
“received only 9.84 seconds of review. Having looked at the 45 pages carefully, the Court is dubious that 9.84 seconds, about the time of an Olympic 100 meters race, is a reasonable investment within which to identify a document, consider author and recipients, appreciate subject matter, assess for discovery responsiveness, assess for KRE 503 and federal work-product application, gauge for any exception, and finally make the decision to withhold or produce. This is especially so where only parts of pages may be under protection, necessitating redaction”.
The court also cited counsel’s inability, despite overseeing the disclosure,
“to show that, by any reasonable method of accounting for privilege, he could have proven a single document that he first segregated and then inadvertently produced.”
Thus, the court concluded:
“Simply put, FTC does not meet its burden of proving non-waiver under Rule 502(b). FTC, by counsel, did not take reasonable steps to prevent disclosure of the 45 pages herein assessed. A page-by-page review/assessment sounds effective and reasonable, but if the facts show, as here, hasty review and no functional measures that would keep protected papers sequestered, the standard goes unmet. The inadvertent disclosure by FTC thus waived any privilege or protection as to those pages”.
Referenced Authority:
- Federal Rules of Evidence 502(b),
- Kentucky Rule of Evidence, 501, and 503
The full text is available here