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When Does Inadvertent Disclosure Constitute a Forfeiture of Work-Product Privilege?

Posted on September 3rd, 2014

Work-product is a privilege issue that we encounter on a semi-regular basis. From the need for sophisticated automated issue coding technologies to inadvertent disclosures, questions surrounding work-product seem to have a firm footing in plaintiff eDiscovery. In Russel Dover, et al., v. British Airways, PLC (UK), (E.D.N.Y. August 15, 2014), the court was tasked with deciding whether or not inadvertently reproduced and unredacted spreadsheets fell under the work-product privilege.

The documents at issue were spreadsheets, which had also undergone analysis by experts, who placed their names on the last page of each spreadsheet.

Plaintiffs produced the unredacted spreadsheets on March 4, 2014, and notified Defendant of an inadvertent production on March 7, 2014. Plaintiffs then provided Defendant with a redacted version to use which did not contain the calculations at the end of the spreadsheets or the experts’ names.

However, when Plaintiffs again reproduced all previously produced documents to comply with Defendant’s request for metadata, Plaintiffs inadvertently reproduced two pages of the unredacted version of the spreadsheet.

Defendant argued that an implied waiver resulted from the inadvertent disclosure of privileged information occurring twice.

Plaintiffs contended:

1. The “r-squared” analysis and names of experts are confidential; and

2. The analysis and names are confidential pursuant a protective order, which contains a clawback provision.

First, the court assigned privilege based on the fact that the spreadsheets were prepared by an expert who would not be expected to be called as a witness at trial. In short, Rule 26(b)(4)(D) of the Federal Rules of Civil Procedure would apply to protect against the disclosure of information from non-testifying, consulting experts.

The court found specific reasons to reject the notion of implied waiver, including:

1. The parties entered into a stipulated protective order that contained provisions concerning inadvertent disclosures;

2. A finding of waiver is appropriate only if production of the privileged material is “completely reckless;”

3. Plaintiffs conceded that they were careless, but that still does not rise to the level of completely reckless conduct; and

4. The fact that Plaintiffs sought the return of the unredacted spreadsheet with a reasonable time (six days) does not constitute completely reckless conduct.

For this reason, among others, the court denied Defendant’s motion to compel.

Did You Know: Over 80 percent of smartphones used for work purposes are employee-owned, citing the need for updated BYOD policies.

ILS – Plaintiff eDiscovery Experts

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