Peterson v. Bernardi
2009 U.S. Dist. LEXIS 64486, 262 F.R.D. 424, 80 Fed. R. Serv. 134 (2009)
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Rule of Law:
Under Federal Rule of Evidence 502(b), the inadvertent disclosure of privileged documents results in a waiver unless the disclosing party proves that the disclosure was inadvertent, they took reasonable steps to prevent disclosure, and they promptly took reasonable steps to rectify the error. However, a court may find no waiver occurred, even if preventative steps were minimal, where the overriding interests of fairness and justice overwhelmingly favor protecting the documents.
Facts:
- A man, the plaintiff, was wrongfully imprisoned for over eighteen years based on a false conviction for murder and rape.
- With assistance from the Innocence Project, DNA testing on crime scene evidence did not match the plaintiff's DNA profile.
- As a result of the DNA evidence, all charges against the plaintiff were dropped in May 2006.
- The plaintiff subsequently filed a civil lawsuit for wrongful imprisonment.
- During the discovery phase of this lawsuit, the plaintiff's counsel produced thousands of documents to the defendants.
- This production inadvertently included approximately 135 documents that the plaintiff later claimed were protected by attorney-client privilege and the work-product doctrine.
- Plaintiff's counsel discovered the inadvertent production months later while preparing for a deposition.
Procedural Posture:
- Plaintiff sued defendants in the U.S. District Court for the District of New Jersey for wrongful imprisonment.
- During discovery, defendants served a document request on the plaintiff.
- After plaintiff repeatedly failed to respond to the request, the court ordered him to complete his document production by specified deadlines.
- Plaintiff eventually produced the documents, but later discovered that privileged materials had been included.
- Plaintiff filed a 'Motion to Compel the Return of Inadvertently Produced Documents' with the Magistrate Judge in the trial court.
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Issue:
Does the inadvertent disclosure of privileged documents during discovery constitute a waiver of privilege under Federal Rule of Evidence 502(b) when the disclosing party fails to demonstrate it took reasonable steps to prevent the disclosure?
Opinions:
Majority - Magistrate Judge Joel Schneider
Yes, for the most part. The inadvertent disclosure of privileged documents constitutes a waiver when the producing party fails to carry its burden of proving it took reasonable steps to prevent the disclosure. However, a court may find that no waiver occurred for a specific subset of documents if the interests of fairness and justice overwhelmingly favor protecting the information, even where the producing party's precautions were minimal. The party asserting privilege must first establish that the documents are actually privileged before the court will analyze whether an inadvertent disclosure resulted in a waiver. Here, the plaintiff failed to meet the threshold burden of proving most documents were privileged. Even if they were, the plaintiff did not demonstrate reasonable preventative steps, merely stating a 'privilege review' was conducted without providing details. The court found this insufficient to satisfy FRE 502(b)(2). However, for a small subset of documents detailing litigation strategy, which were obviously work-product, the court found that the interests of justice, given the underlying facts of the plaintiff's 18-year wrongful imprisonment, outweighed the carelessness of counsel and prevented waiver for those specific documents.
Analysis:
This opinion clarifies the practical application of Federal Rule of Evidence 502(b), establishing that a party cannot simply make a conclusory statement about conducting a 'privilege review' to prove they took reasonable steps to prevent disclosure. The decision reinforces that the burden of proof is squarely on the disclosing party. More significantly, it establishes a flexible 'interests of justice' exception, allowing a court to prevent a waiver for clearly privileged documents in rare cases with compelling underlying facts, even in the face of the disclosing party's negligence. This provides a judicial safety valve to prevent harsh outcomes, especially where the documents are core work product.
