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Plaintiff Can’t “Pick” and Choose When it Comes to Privilege of Inadvertent Disclosures – eDiscovery Case Law
In Pick v. City of Remsen, C 13-4041-MWB (N.D. Iowa Sept. 15, 2014), Iowa District Judge Mark W. Bennett upheld the magistrate judge’s order directing the destruction of an inadvertently-produced privileged document, an email from defense counsel to some of the defendants, after affirming the magistrate judge’s analysis of the five-step analysis to determine whether privilege was waived.
In this wrongful termination case, the plaintiff served a request for production of documents that included “all relevant non-privileged emails initiated by or received by the City of Remsen in regard to the Plaintiff and/or any of the issues set forth in Plaintiff’s complaint”. Among the documents produced was an email, dated July 14, 2012, from defense counsel to Remsen Utility Board members and others discussing an upcoming Utility Board meeting. Defense counsel learned of the email’s inadvertent disclosure on March 25, 2014, when the plaintiff served supplemental discovery responses on defense counsel and contacted plaintiff’s counsel within 34 minutes of the discovery.
Defense counsel asked that the email be destroyed. The plaintiff’s counsel suggested the email could be redacted to protect “advice relating to procedure,” but indicated he intended to rely on the remainder of the email unless ordered otherwise by the court. The defendants’ filed a motion requesting that the court order the email’s destruction as an inadvertently produced privileged document, which the magistrate judge granted.
The Magistrate Judge, Leonard Strand, had applied the five-step analysis to determine the proper range of privilege to extend. Those five factors were, as follows:
- The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production: Judge Strand found that the privileged email was “inconspicuously located among various non-privileged email messages”, which, based on the fact that defendants turned over to their counsel 440 pages of documents (including 183 pages of email messages, some pages of which contained more than one email), was upheld as “completely fair and accurate”;
- The number of inadvertent disclosures: Since there was only one inadvertent disclosure, Judge Bennett upheld the ruling as “not clearly erroneous”;
- The extent of the disclosures: Though the email was sent to six people, all six were privileged recipients of the email, so Judge Bennett upheld the ruling as “not clearly erroneous”;
- The promptness of measures taken to rectify the disclosure: Because defense counsel contacted plaintiff’s counsel just 34 minutes after learning of the email’s inadvertent disclosure and requested its destruction, Judge Bennett upheld the ruling as “not clearly erroneous”; and
- Whether the overriding interest of justice would be served by relieving the party of its error: Judge Strand, finding that the plaintiff “clearly has other evidence that he intends to rely on in support of his various claims”, ruled in favor of the defendant in this factor as well, which Judge Bennett upheld.
Judge Bennett summarized as follows: “The email is classic legal advice that should be protected by the attorney-client privilege…This interest of justice would be harmed here by permitting Pick to use the email at trial…Given the important nature of the attorney-client privilege and the manner in which the email was inadvertently disclosed, Judge Strand’s conclusion that the overriding interest in justice factor weighed against waiver is not clearly erroneous. Accordingly, Pick’s objection is overruled.”
So, what do you think? Did defense counsel’s quick reaction to the disclosure save the email’s privileged status? Please share any comments you might have or if you’d like to know more about a particular topic.
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