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Another Disclosure of Privileged Documents Fails the Five Factor Test – eDiscovery Case Law


In Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., 2:07-CV-116 (N.D. Ohio), Ohio Magistrate Judge Norah McCann King found that the defendant had waived the attorney-client privilege was waived for 347 emails inadvertently produced, because they failed all factors in the five factor test to determine whether the inadvertent disclosure entitles the producing party to the return of the documents in question.

Background of Inadvertent Disclosure

In a breach of contract lawsuit, the defendant produced 7,500 hard copy pages including 347 pages of emails (4.6% of the total) for which legal personnel were senders or recipients. The defendant did not assert privilege on any of the 347 pages of emails until the plaintiff sought to depose those legal personnel. As a result of the defendant seeking to assert privilege on those emails, the plaintiff filed a motion for a determination that the documents are not privileged and submitted them for in camera review.

Five Factor Test

Noting that the producing party has the burden to prove that the disclosure of privileged documents was truly inadvertent, Judge King referenced the now popular five factor test to determine whether an inadvertent disclosure entitles the producing party to have the documents returned, as follows:

“(1) the reasonableness of precautions taken in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the magnitude of the disclosure, (4) any measures taken to mitigate the damage of the disclosures, and (5) the overriding interests of justice.”

Analysis of Factors

With regard to the first factor, despite the fact that the defendant claimed that this production “was reviewed by several layers of attorneys who isolated the privileged documents and prepared for electronic production in the same way” as their previous productions, Judge King noted that the defendant did not specify “who reviewed the production, what steps were taken to review the documents for privilege or whether the production was different in form from prior productions” and noted that no privilege log was produced.  As a result, Judge King found that the defendant failed the first factor.

With regard to the second factor, Judge King compared the rate of disclosure of privileged documents in this case (4.6% of the total) to two other cases where privilege was also waived (134 out of 10,085 pages and 93 documents out of 15,000 documents respectively) and found the number of disclosures to be “relatively high”, so the defendant failed the second factor.

Regarding the third factor, the fact that the documents appeared to be relevant to the plaintiff's claims and they attempted to use them in depositions caused the defendant to fail the third factor.

On the fourth factor, the defendant did immediately invoke privilege when it discovered that the documents had been inadvertently produced.  However, they did not follow the procedure in Federal Rule of Civil Procedure 26(b)(5)(B), which requires:

“If information produced in discovery is subject to a claim of privilege . . . the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party . . . may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.”

As Judge King noted, “Medex did not identify any particular documents covered by the privilege, did not provide a proper privilege log and, beyond conclusory statements, Medex did not state a basis for the claimed privilege.”  So, they failed the fourth factor.

At this point, if this was a boxing match, it would be stopped.  In granting the plaintiff’s motion, Judge King stated: “To summarize, the Court finds that Medex did not take reasonable precautions to protect its privileged information, the number of documents disclosed is significant, no privilege log was provided at the time of disclosure, the contents of some of the documents may be relevant to the heart of the dispute, and Medex made insufficient attempts to mitigate its damage even after it learned of the disclosure.”

So, what do you think?  What do you to ensure your firm will pass the five factor test for inadvertent disclosures of privileged documents?  Please share any comments you might have or if you’d like to know more about a particular topic.

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