Judge Looks Past Inadvertent Disclosure Protection Rule

Shannon P. Duffy
The Legal Intelligencer
December 8, 2008

In one of the first decisions to interpret a new rule of evidence that governs “inadvertent disclosure” of privileged documents, a federal judge has held that if the “reasonableness” of the accidental disclosure remains in dispute, courts should continue to apply the traditional five-factor test to determine whether the privilege has been waived.

In his 21-page opinion in Rhoads Industries Inc. v. Building Materials Corp. of America, U.S. District Judge Michael M. Baylson was forced to resolve a dispute that arose when plaintiffs lawyers accidentally turned over more than 800 privileged e-mails when they provided the defense lawyers with copies of 78,000 e-mails.

The decision is one of the first to apply the newly enacted Rule 502 of the Federal Rules of Evidence, which protects against waiver of privilege if the disclosure is inadvertent and if the holder of the privilege took “reasonable steps” to prevent disclosure and to rectify the error.

But for lawyers, the ruling also serves as a reminder of another rule, Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure, which mandates that lawyers create a privilege log for all documents withheld.

Although Baylson ultimately concluded that the privilege wasn’t waived for all 800 documents, he nonetheless found that the plaintiff’s failure to comply fully and timely with the mandatory requirements of Rule 26 meant that the privilege was waived for 120 documents.

“The obligation to log privileged documents is mandatory under the specific terms of Rule 26(b)(5). Despite Rhoads’s attempts to justify, explain and minimize its failure to log all of its inadvertently privileged documents by June 30, 2008, the court finds that the delay in doing so until Nov. 12, 2008 is too long and inexcusable,” Baylson wrote.

Defense lawyers urged Baylson to rule that the plaintiff had waived the privilege for all of the inadvertently disclosed documents because its process of screening the documents was “grossly insufficient.”

For more see law.com.

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One Response

  1. […] bookmarks tagged inadvertent Judge Looks Past Inadvertent Disclosure Protection… saved by 5 others     Killahchaos bookmarked on 12/20/08 | […]

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