Federal Evidence Review

In concluding that disclosure of memorandum covered by the work-product privilege was not inadvertent under FRE 502, court addresses open issues concerning the burden under the rule and the meaning of “inadvertent disclosure,” in Amobi v. District of Columbia Dept. of Corrections, 262 F.R.D. 45 (D.D.C. Dec. 8, 2009) (Civil Action No. 08-1501 (BEL/JMF))

The courts continue to apply new FRE 502, concerning disclosure of the attorney-client privilege and work product doctrine. A recent case from the District of Columbia highlights some open issues under FRE 502(b).

The case involved an altercation at a correctional institution. Plaintiff Amobi, an officer with the Department of Corrections (“DOC”) was summarily removed after the altercation. He filed a lawsuit alleging that he was denied a right to a hearing. After a hearing officer ultimately upheld his removal, he appealed the removal in arbitration proceedings which resulted in his reinstatement. An action was then filed in federal court for damages. During discovery in the arbitration proceedings, the department inadvertently disclosed a memorandum prepared by an attorney advisor. Defense counsel then requested return or destruction of the memorandum. Various motions were filed for depositions and to quash the confidential memorandum. The discovery issues were referred to Magistrate Judge John M. Facciola who considered the privilege issues and applied FRE 502.

Was The Memorandum Protected?

As the party claiming the privilege, the defense failed to meet its burden to show that the memorandum was privileged. See In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984) (claimant must “demonstrate with reasonable certainty that the attorney’s communication rested in significant and inseparable part on the client’s confidential disclosure”). The defense failed to indicate that any privileged communications were disclosed and merely made a broad claim of privilege which was insufficient. The memorandum also did not appear “to rest in significant and inseparable part on the client’s confidential disclosure.” Amobi, 262 F.R.D. at 51. Consequently, the memorandum was not protected by the attorney-client privilege. However, the memorandum was protected by the work-product privilege since it was prepared “in anticipation of litigation,” specifically for the arbitration proceeding. Fed. R. Civ. P. 26(b)(3).

Whether Disclosure Was Inadvertent?

The court then considered whether the memorandum was protected under the inadvertent disclosure provisions of FRE 502(b). The court noted that prior to the new rule, “parties in defendants’ position in this Circuit would have no argument to protect against waiver; they would simply be dead in the water with an inadvertent disclosure.” Amobi, 262 F.R.D. at 52 (citing In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989) (any disclosure results in automatic waiver). The court described the application of FRE 502(b):

The new Federal Rule of Evidence 502(b) protects from waiver a privileged document that has been disclosed inadvertently. See Fed. R. Evid. 502(b). The rule brings uniformity across the circuits to their once differing treatment of the effect of certain inadvertent disclosures of privileged materials. See Fed. R. Evid. 502 advisory committee note. The rule takes what the Advisory Committee calls the ‘middle ground’ regarding the effect of inadvertent disclosure on waiver of privilege. Id. at Subdivision (b). This middle ground, unlike the D.C. Circuit’s strict waiver rule, requires the court to apply a three part test to determine if the inadvertent disclosure constitutes a waiver. See Fed. R. Evid. 502(b)(1)-(3). The three-part test finds that the disclosure is not a waiver if: (1) the disclosure was inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error.

Amobi, 262 F.R.D. at 52.

Burden On Proponent Of Privilege

The court noted an open issue under FRE 502 concerning the burden and concluded that proponent bore the burden:

Rule 502 itself does not provide any guidance on who has the burden of proving waiver. In this district, prior to the enactment of the rule, ‘the proponent of the privilege. . . [had] the burden of showing that it [had] not waived attorney-client privilege.’ See United Mine Workers of Am. Int’l. Union v. Arch Mineral Corp.,145 F.R.D. 3, 6 (D.D.C. 1992) (citing Sec. and Exch. Comm’n v. Gulf & Western Indus., Inc., 518 F.Supp. 675, 682 (D.D.C. 1981)). I see no reason why Rule 502 can be interpreted to modify that rule and I will apply it.

Amobi, 262 F.R.D. at 53.

Defining Inadvertent Disclosure

The court also noted that FRE 502 did not define what constitutes “inadvertent disclosure.” Different definitions had been suggested. After canvassing the cases and other authorities, the court concluded the meaning entailed “unintended disclosure”:

Prior to the rule, the court of appeals did not distinguish between inadvertent and other types of disclosure; however, other courts that followed a less strict construction of waiver considered a number of factors to determine inadvertency, including the number of documents produced in discovery, the level of care with which the review for privilege was conducted and even the actions of the producing party after discovering that the document had been produced. See, e.g., Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 388 (7th Cir. 2008) and Heriot, 257 F.R.D. at 658-59. Other courts have found that Rule 502(b) provides for a more simple analysis of considering if the party intended to produce a privileged document or if the production was a mistake. See e.g., Coburn Group, LLC v. Whitecap Advisors LLC, 640 F. Supp. 2d 1032,1037-1038 (N.D. Ill. 2009). This interpretation seems to be in line with one of the goals of the drafting committee: to devise a rule to protect privilege in the face of an innocent mistake. Coburn, 640 F.Supp.2d at 1038 (citing Ltr. from Lee H. Rosenthal, Chair, Comm. on Rules of Practice and Procedure, to Hon. Patrick J. Leahy, Chairman, Comm. on the Judiciary, U.S. Senate, and Hon. Arlen Specter, Member, Comm. on the Judiciary, U.S. Senate, at 2 (Sept. 26, 2007)). Additionally, defining inadvertent as mistaken comports with the dictionary definition of the word: ‘ Of persons, their dispositions, etc.: Not properly attentive or observant; inattentive, negligent; heedless. . . . Of actions, etc.: Characterized by want of attention or taking notice; hence, unintentional.’ The Oxford English Dictionary (2d ed. 1989), available at OED Online, Oxford University Press. There is every reason to suppose that Congress uses this definition. See, e.g., Hercules Inc. v. Envtl. Prot. Agency, 938 F.2d 276, 281 (D.C. Cir. 1991) (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (citations omitted)). Additionally, permitting ‘inadvertence’ to be a function of, for example, the amount of information that had to be reviewed or the time taken to prevent the disclosure melds two concepts, ‘inadvertence’ and ‘reasonable efforts,’ that should be kept distinct. One speaks to whether the disclosure was unintended while the other speaks to what efforts were made to prevent it. I will therefore use the word ‘inadvertent’ from Rule 502 to mean an unintended disclosure.

Impact Of Attorney Disclosure

The court rejected the defense claim that inadvertence was shown since it was made by an attorney:

More to the point, to find that a document disclosed by a lawyer is never inadvertent would vitiate the entire point of Rule 502(b). Concluding that a lawyer’s mistake never qualifies as inadvertent disclosure under Rule 502(b) would gut that rule like a fish. It would essentially reinstate the strict waiver rule in cases where lawyers reviewed documents, and it would create a perverse incentive not to have attorneys review documents for privilege.

Amobi, 262 F.R.D. at 54.

Reasonable Steps Not Shown

The court assumed that the first element under FRE 502(b), requiring inadvertent disclosure, was met. The defense failed to meet the second element, “whether the holder of the privilege or protection took reasonable steps to prevent disclosure of the privileged document,” under FRE 502(b)(2). The court noted that the ACN provided some guidance but “consciously chose not to codify any factors in the rule because the analysis should be flexible and should be applied on a case by case basis.” The defense failed to identify specific steps taken to prevent disclosure:

Defendants do not provide the court with any indication of the methodology used to review documents for privilege, but only vaguely refer to several reviews of the documents to be produced. Further, defendants do not indicate how many total documents they produced, so the court cannot determine the magnitude of the error in producing this one document consisting of four pages. Indeed, one keeps searching for some statement somewhere in the defendants’ papers that speaks to what they did when they got the documents, how they segregated them so that the privileged documents were kept separate from the non-privileged, and how, despite the care they took, the privileged document was inadvertently produced. Instead, the court is told in the passive voice that ‘several reviews of the documents to be disclosed were undertaken, [and] this document was inadvertently produced.’ Hence, the efforts taken are not even described, and there is no indication of what specific efforts were taken to prevent disclosure, let alone any explanation of why these efforts were, all things considered, reasonable in the context of the demands made upon the defendants…. There can be no reasonable efforts, unless there are efforts in the first place. Hence, defendants do not meet the burden of proving that the privilege was not waived in regards to the memorandum. Id.

Amobi, 262 F.R.D. at 55. While it was questionable whether the third element was met (“promptly took reasonable steps to rectify the error”), the failure to show reasonable efforts was dispositive. The court concluded that “the protection of the work-product privilege has been waived and plaintiff does not have to return, sequester, or destroy the memorandum.”

The Amobi case is the latest published case to apply FRE 502. The case identifies some open issues under the rule. More importantly, it highlights the necessity of specifying the reasonable steps taken to prevent disclosure. For more information on the history and application of FRE 502, see the FRE 502 Resource Page.