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

http://ow.ly/brLVI

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

This article examines the case of  D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), 2012 WL 1949854 (D.N.J. May 30, 2012) in which the defendant's inadvertent production of privileged documents was deemed to be a waiver of privilege. A link to the case opinion is provided in the article.

The article states, "defendant failed to heed warnings that something was “profoundly awry with their document production and privilege review” and discover that privileged information had been produced."

The article goes on to outline the errors made during production that led to the disclosure of approximately 1000 pages of privileged information.

The article further states, "In her decision, Judge Bongiovanni relied on Federal Rules of Evidence 502(b) to rule on the waiver of privilege:

“‘(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.’”

Although Judge Bongiovanni found that Defendants’ initial efforts to prevent disclosure were reasonable and that “the number and extent of the disclosures” were “neutral factors,” she concluded that Defendants “did not take reasonable steps to remedy their error.”"