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.
via Inadvertent Production Results in Waiver of Attorney-Client Privilege as to 347 Pages of Emails : Electronic Discovery Law.
he ACLU won’t get information on unauthorized interrogation techniques allegedly used by CIA agent on suspects captured in the wake of the terrorist attacks of Sept. 11, 2001, a federal judge ruled. You can read the opinion here.
The group sued the federal agency for refusing to release the records under the Freedom of Information Act. According to the ruling, the records are composed of reports written by the CIA Office of the Inspector General “relating to the detention, interrogation, or treatment of individuals apprehended after Sept. 11, 2001, and held at detention facilities outside the United States.”
U.S. District Judge Amy Jackson dismissed the ACLU’s claims for all the records except for one, which the judge ordered to be remanded back to the CIA to determine if it holds information that has already been released.
The judge accepted the CIA’s argument that the records are protected by exemptions one and three of FOIA, which allow the government to withhold information sensitive to national security and protected by statute. In this case, the CIA cited the National Security Act as the statute protecting the records.
“The ACLU’s only argument is that interrogation techniques cannot be properly classified as intelligence sources or methods when they are ‘unauthorized,'” states Judge Jackson. “It provides scant support for this assertion, and there is nothing in statute or case law that requires courts to treat information about unauthorized interrogation techniques differently from information about authorized techniques.”After the ACLU’s initial complaint, the CIA released some records that were partially redacted, but withheld the 11 documents at issue in their entirety.
via Courthouse News Service.
A federal appeals court will hear a challenge to Minnesota’s law requiring corporations to disclose their political donations.
A three-judge panel of the 8th U.S. Circuit Court of Appeals upheld the law in May. But in September, the entire court will hear the matter again.
Arguments before the full 8th Circuit will be September 21 in St. Louis