This is an illustrative case as to why attorneys want to take precautions when producing discovery. The case is Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 3731483 /0S.D. Ohio Aug. 28, 2012).
In this case, the court held that privilege had been waived as to 347 pages of inadvertently produced emails where, among other things, Defendant failed to establish the reasonableness of the precautions taken to prevent the disclosure and “failed to take adequate measures to rectify or mitigate the damage of the disclosure.”
Here, Defendant did not stamp any documents as confidential. Upon reviewing the documents at issue, the court held that those documents were covered under the attorney-client privilege. However, the court found that the privilege had been waived. The court highlighted the following facts:
- Defendant’s lack of specificity as to who conducted the review and how the review was conducted. The general assertion that multiple lawyers reviewed it was not enough.
- Defendant failed to produce a privilege log during discovery;
- 4.6% of the documents were inadvertently produced, which the Court found to be “relatively high.”
In sum, the Court opined:
After balancing the required factors, the Court concludes that Medex waived the attorney client privilege otherwise applicable to the 347 documents in the May 30 production. To summarize, the Court finds that Medex did not take reasonable precautions to protect its privileged information, the number of documents disclosed is significant, no privilege log was provided at the time of disclosure, the contents of some of the documents may be relevant to the heart of the dispute, and Medex made insufficient attempts to mitigate its damage even after it learned of the disclosure.