Federal Evidence Review

While the plaintiff failed to meet his burden to show most of the documents were privileged or protected, or, alternatively, that inadvertent disclosure was shown, based on the “interests of fairness and justice,” nine pages were entitled to protection in a “rare” yet flexible application of FRE 502(b), in Peterson v. Bernardi, 80 Fed. R. Evid. Serv. 134 (DNJ July 24, 2009) (Civil No. 07-2723-RMB-JS)

A recent case demonstrated the burden on a party to demonstrate inadvertent disclosure. In applying FRE 502, and considering the applicable factors, the court concluded that most of the documents should not be protected. However, in a “rare” case, the court demonstrated some flexibility under FRE 502 in deciding that the “interests of fairness and justice” required nine pages of documents to be protected.

In the case, the plaintiff filed a civil action claiming he was wrongly imprisoned for more than eighteen years based on an erroneous murder and rape conviction. The charges were dismissed based on DNA testing concluding evidence from the crime scene did not match the plaintiff's DNA profile. During discovery, the plaintiff included materials which he later claimed were covered by the attorney-client privilege and work product doctrine, or were protected by the cleric penitent privilege, and had been inadvertently disclosed. Many of the documents included communications between the plaintiff and his attorneys at the public defender’s office or Innocence Project. None of the parties cited to new FRE 502(b) establishing new standards for inadvertent disclosure. The plaintiff moved to compel the return of the documents.

District of New Jersey United States Magistrate Judge Joel Schneider concluded the resolution of the issue was governed by FRE 502(b). In essence, with one exception, the plaintiff failed to meet his burden in two respects. First, he failed to show the documents should be protected by the privilege or work product doctrine. Second, under FRE 502(b), the plaintiff failed to meet his burden to show the documents were inadvertently produced. See, e.g., Heriot v. Byrne, 257 F.R.D. 645, 2009 WL 742769, at *6 (N.D.Ill. March 20, 2009).

In assessing whether the disclosure was inadvertent, the Court applied five factors under the “intermediate” case law approach adopted under the rule:

“(1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosures; (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.”

Ciba-Geigy, 916 F.Supp. at 411.

The Court discussed the application of these factors. On the first factor, the plaintiff “took minimal steps to protect against inadvertent disclosure.” Merely claiming that “plaintiff's counsel engaged in a privilege review” was insufficient as the plaintiff failed to “state when his review occurred, how much time he took to review the documents, what documents were reviewed, and other basic details of the review process.” Elaborating on this point, the Court noted:

“[P]laintiff did not proffer any facts to establish that reasonable precautions were taken to prevent this from occurring. Nor does plaintiff explain how other allegedly privileged documents come to be inadvertently produced. For the purpose of deciding plaintiff's motion, the Court does not question the sincerity of plaintiff's argument that he did not intend to produce the documents in question. However, plaintiff's subjective intent is not controlling. All inadvertent disclosures are by definition unintentional.”

Peterson, 80 Fed. R. Evid. Serv. at __ (citation omitted).

In considering the remaining factors, on balance they did not support a showing of inadvertent waiver:

“Although on a total percentage basis the number of disclosures is small (approximately 135 out of thousands produced), the nature of the disclosures is relevant. Most of the documents in question are exchanges between plaintiff and his counsel. These communications warranted a significant level of scrutiny. Further, 135 documents is not an insignificant number. As to plaintiff's efforts to rectify his error, the Court finds this factor neutral. Although plaintiff did not alert defendants until months after his documents were produced when he was preparing for a deposition, plaintiff brought the error to defendants' attention within a week or two of his discovery.”

“The interests of fairness and justice would not be served by relieving plaintiff of the consequences of counsel's error. Parties must recognize that there are potentially harmful consequences if they do not take minimal precautions to prevent against the disclosure of privileged documents. Further, in contrast to the documents discussed infra, no unfairness or injustice would result from finding that a waiver occurred. [Additionally, in reviewing the record of the document production, the] plaintiff had more than an adequate opportunity to respond to defendants' document request without feeling “rushed.” Plaintiff's counsel only has himself to blame for the Court's insistence that he complete his document production by July 31, 2008 and October 31, 2008. The time constraints about which plaintiff now complains were self-imposed and do not excuse his careless actions.”

Peterson, 80 Fed. R. Evid. Serv. at __ (citations and footnotes omitted).

Notwithstanding the determination that many of the documents were not privileged or protected, and, alternatively, the plaintiff failed to demonstrate the disclosure was inadvertent, there were nine pages of documents discussing litigation strategy and work product which were entitled to protection under FRE 502. This ruling was based on the “interests of fairness and justice”. As the Court explained:

“The documents address in detail what plaintiff's attorneys and their representatives did to get plaintiff released from prison. In contrast to the other inadvertently produced documents, these documents are so obviously work product that no extrinsic evidence is necessary to establish this fact…. [T]he Court finds that the interests of fairness and justice are furthered by ruling that the work product protection attached to the documents was not waived. The interests of fairness and justice are relevant factors to analyze to determine if inadvertently produced documents should be returned. Explanatory Note [to FRE 502(b) (revised November 28, 2007)]. See also Fed. R. Civ. P. 1 (the Federal Rules should be construed and administered to secure the just determination of every action and proceeding). The Court rules that the interests of fairness and justice so overwhelmingly favor plaintiff with regard to documents POO6988-6996, that they outweigh the fact that at best plaintiff's counsel exercised minimal precautions to protect the documents from inadvertent disclosure. The application of FRE 502(b) was designed to be flexible. This flexibility authorizes the Court to find that a waiver did not occur in circumstances where an injustice to the client would result from a contrary ruling. It is rare that a Court will not find that a waiver occurred in an instance where a party presents only minimal evidence that it exercised reasonable precautions to prevent a waiver. This is one of those rare occurrences.”

Peterson, 80 Fed. R. Evid. Serv. at __ (citations omitted in part). Consequently, the plaintiff’s motion to compel the return of documents was denied in part and granted in part.

The Peterson case demonstrates application of new FRE 502(b) in a “rare” case in “the interests of fairness and justice” in order to avoid “an injustice” notwithstanding the lack of a showing that counsel took steps to protect against inadvertent disclosure. After Peterson, a question is posed whether this flexible, yet rare, application of FRE 502(b) will be confined to the unique facts of the case or may be extended to other claims of inadvertent disclosure.