eDiscovery Case Law: Two Pages Inadvertently Disclosed Out of Two Million May Still Waive Privilege

http://ow.ly/a345p

An article by Doug Austin posted on the eDiscovery Daily Blog.

This article provides information about the case Jacob v. Duane Reade, Inc., 11 Civ. 0160.

This article looks at waiver of privilege, and examines the order for the case which discusses the factors involved in determining if privilege has been waived.

The article states, "Magistrate Judge Theodore Katz of the US District Court for the Southern District of New York found that a privileged, two-page email that was inadvertently produced did not have to be returned and that the privilege had been waived because the producing party, Duane Reade, had failed to request its return in a timely manner. According to Defendants' counsel, the ESI production involved the review of over two million documents in less than a month; that review was accomplished with the assistance of an outside vendor and document review team."

The article goes on to further state, "In determining whether an inadvertent disclosure waives privilege, courts in the Second Circuit have adopted a middle of the road approach. Under this flexible test, courts are called on to balance the following factors: (1) the reasonableness of the precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) "the scope of the discovery;" (4) the extent of the disclosure; and (5) an over[arching] issue of fairness.”

The Court ruled that the production of the email was inadvertent and that Duane Reade had employed reasonable precautions to prevent inadvertent disclosures (such as drafting lists of attorney names, employing search filters and quality control reviews). However, given the over two month time frame for the Defendants to request return of the email, the Court determined that the privilege was waived because the Defendants did not act “promptly to rectify the disclosure of the privileged email.”"