Federal Court’s Inadvertent Disclosure Ruling Reversed

In Amersham Biosciences Corp., et al. v. PerkinElmer, Inc., the U.S. District Court in New Jersey reversed a magistrate judge’s ruling that one of the parties inadvertently disclosed privileged documents during electronic discovery.

In this New Jersey patent case, the court reversed the ruling on the ground that the magistrate judge did not have a complete factual record on which to base its decision. The magistrate judge relied on an affidavit that attested to the steps taken to avoid production of privileged data. The e-discovery vendor, Applied Discovery, and its client and the law firm involved, apparently failed to detect that the unique folder structures in Lotus Notes, unlike Microsoft Office, leaves a general folder structure in place, even if you delete subfolders. Here, the producing party deleted or withheld subfolders with privileged information but the general folders, on their face, still included the privileged folders thought to be segregated from the rest of the information produced. As a result, the magistrate judge reached his conclusion based on erroneous facts. The district court remanded the matter to determine, among other things, whether the party, in fact, preserved privilege and is entitled to receive back the privileged information.

This case is a good illustration of the complexity of issues involving inadvertent disclosure and e-discovery. Inasmuch as this case only had in dispute about 600 documents, it is abundantly clear that courts will face significant challeges in dealing with e-discovery disputes and these complexities must be taken into account by the Advisory Committee on Evidence Rules when considering proposed Rule 502(b) (inadvertent disclosure of privileged information).

Here is a full copy of the letter opinion in Amersham Biosciences Corp., et al. v. PerkinElmer, Inc.. See also earlier posts on proposed new Rule 502.



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