eDiscovery Daily Blog

eDiscovery Case Law: Privilege Waived Because Defendants Failed to Notice “Something Had Gone Awry” with Their Production


In D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), (D.N.J. May 30, 2012), New Jersey Magistrate Judge Tonianne Bongiovanni denied the defendants’ motion for discovery to reclaim privileged documents that were inadvertently produced, finding that privilege was waived because the defendants failed to take reasonable measures to rectify the disclosure. 

During the course of discovery in a case where the plaintiff alleged the defendants engaged in conduct that violated the plaintiff’s constitutional and statutory rights, the defendants reviewed 14 boxes of documents for possible production to the plaintiff. Six of those boxes, the “Ryan/McKenna” boxes, were reviewed by a partner at the law firm representing the defendants. The partner marked certain documents as privileged and then instructed a clerical employee to separate privileged and non-privileged documents, to Bates stamp the separated documents, and to burn the non-privileged documents onto a disc for production. The clerical employee failed to follow instructions, and privileged documents were inadvertently produced. 

Despite subsequent events where the defendants could have discovered the mistake, the defendants remained unaware of the accidental disclosure for approximately eight months until the plaintiff attached some of the privileged documents to an exhibit of his brief on an unrelated matter. The intervening events where the defendant failed to notice the production of privileged documents included the following: (1) the defendants voluntarily recalled the disc to reorganize the documents and remove electronic comments inadvertently left on some documents, and then resubmitted the disc to the plaintiff; (2) the defendants again recalled the disc after the plaintiff informed them the new disc was unreadable, and, after a clerical employee performed a “quality control audit” on the disc to ensure the defendants were producing the same set of documents, the defendants again produced the disc; (3) the defendants created a privilege log but did not realize the number of documents for the Ryan/McKenna boxes marked privileged was too small; and (4) after the plaintiff informed them that some of the documents on another disc were out of order, the defendants discovered hundreds of privileged documents from the “borough” boxes, another set of boxes, had been accidentally produced, but the defendants did not re-review the Ryan/McKenna documents that were produced.

Judge Bongiovanni articulated the applicable standard of review under Federal Rule of Evidence 502(b), stating that the factors to be considered in determining whether a waiver occurred are: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving the party of its error.

Judge Bongiovanni had no trouble finding that the defendants “initially” took reasonable precautions to prevent production of privileged documents by devoting sufficient time to review, having a partner personally review all of the Ryan/McKenna documents, delegating to a clerical employee the task of separating privileged and non-privileged documents, and even by reviewing the disc before producing it to the plaintiff.

She then noted that the number and extent of the defendant’s unintentional disclosures were “neutral.”

Turning to the defendants’ efforts to rectify the disclosure, however, Judge Bongiovanni concluded that the defendants “did not take reasonable steps to remedy their error.” She stated, “Defendants should have been aware that something was amiss with their document production long before Plaintiff relied on three privileged documents” in his brief. Furthermore, although the defendants were not obligated to “engage in a post-production review to determine whether any protected communication or information [was] produced by mistake,” once a party is “‘on notice that something [i]s amiss with its document production and privilege review,’ then that party has an obligation to ‘promptly re-assess its procedures and re-check its production.’” The court pointed out that “the combination of the inadvertently produced attorney electronic comments and 728 pages of privileged Borough documents should have put the [ ] Defendants on notice that something had gone profoundly awry with their document production and privilege review.” A “reasonable person” would have rechecked the disc containing the Ryan/McKenna documents, and yet the defendants failed to do so.

Finally, the court also found that the interests of justice favored finding that a waiver occurred because the defendants’ “negligence” led to the inadvertent disclosure of privileged information.

So, what do you think?  Was the ruling fair?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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