Opinion
Case Nos. 2:04-cv-494, 2:04-cv-584, (Case No. 02-55291), Adv. Pro. No. 04-02169.
January 29, 2008
ORDER
Earlier in this case, the defendants filed a motion for an in camera review of certain documents which were produced by the plaintiffs. After the motion was briefed, the Court issued an order on November 9, 2007 asking for additional information. In particular, the Court was concerned that a factual vacuum existed with respect to the care taken by the plaintiffs to insure that no privileged documents were inadvertently produced. The Court therefore directed plaintiffs to supplement the record in this regard and gave defendants the opportunity to file an additional brief. Both of those filings have been submitted. For the following reasons, the Court concludes that the plaintiffs waived the attorney-client privilege by the manner in which they produced these documents.
The basic facts are not in dispute. On January 26, 2007, plaintiffs produced documents on a CD as part of their Rule 26(a)(1) initial disclosures. On May 8, 2007, plaintiffs' counsel wrote a letter advising defendants that a number of attorney-client documents had been included on these compact disks. He requested that they be returned. Rather than doing so, defendants asked the Court to determine either that a number of the documents were not privileged or that any privilege which might have attached to the documents was waived by their production. According to plaintiffs, there are approximately 33 documents at issue here.
The only factual submission made in connection with the original proceedings was a certification from Brett Boal, the plan trustee of the Divine Tower International Corporation Liquidating Trust. Mr. Boal stated that the two CDs which were produced as part of plaintiffs' initial disclosures were prepared by the law firm of Luper, Neidenthal Logan. Mr. Boal stated that he believed that any privileged documents had been either removed, or never copied, onto these CDs by that law firm. He apparently did not check the CDs to make sure that was the case, but rather gave them to the attorneys representing Divine Tower in this case. They were then passed on to the defendants.
In response to the Court's concern that no information had been supplied about the production of these documents beyond Mr. Boal's certification, plaintiffs submitted a certification to David M. Scott, an attorney with Luper, Neidenthal Logan. Mr. Scott explained the procedure followed by his firm when they produced documents in the prior litigation. According to him, he took due care to make sure that a CD prepared for opposing counsel did not contain any privileged documents. For some unexplained reason, however, the CD which was ultimately produced did include some privileged documents. As soon as he found that out, he asked for the privileged documents back. All opposing counsel except one had returned them by November of 2004. At that time, Mr. Scott's firm had no further involvement with the litigation. He did, however, advise new counsel of the facts surrounding the production of these documents and the fact that one opposing counsel was still refusing to return them.
Interestingly, the letter which Mr. Scott wrote to opposing counsel in that case indicated that the only documents inadvertently produced, and for which the attorney-client privilege was being maintained, were documents containing the Bates stamps of DTIC 01768-DTIC 1772 and DTIC 02094-DTIC 02095. Plaintiffs have not explained whether those documents are the same 33 documents for which they are claiming privilege in this case.
The Court notes, first that neither of these certifications appears to be in compliance with 28 U.S.C. § 1746. That statute contains language concerning declarations under penalty of perjury which, while not mandatory, is to be reproduced in substantial form in any declaration made in a court proceeding. Neither of the certifications contains that language nor makes any reference to § 1746. Nevertheless, the Court will treat the statements contained in the declarations as true for purposes of resolving the instant motion.
As the Court earlier noted, it is inclined to adopt the test for inadvertent production of privileged documents set forth inNilavar v. Mercer Health Systems-Western Ohio, 2004 WL 5345311 (S.D. Ohio March 22, 2004) (Rice, J.). That case holds that there are a number of factors to be taken into account in determining whether an unintentional production of privileged documents waives the privilege, including the reasonableness of the precautions taken, the number of disclosures, the extent of the disclosures, the promptness of measures taken to rectify the disclosures, and the interests of justice. Those factors are to be balanced in determining whether a waiver has occurred.
Here, the Court has almost no information concerning the reasonableness of precautions taken by the plaintiffs to insure that the two CDs produced in this case did not contain privileged documents. The Court cannot even tell whether these two CDs are the same CDs (or CD) produced by Mr. Scott in the prior litigation. It is clear, however, that in 2004 Mr. Scott advised new counsel for the plaintiffs that there had been an inadvertent production of privileged documents and that he was in the process of attempting to get them back. How the same privileged documents (or different privileged documents) ended up being produced again in this litigation is completely unexplained. The Court concludes that, at the very least, it would have been unreasonable for new counsel not to insure that once a mistake had occurred with respect to producing privileged documents, the same or a similar mistake did not occur in the future. Consequently, the Court can make no finding which would favor the plaintiffs concerning the reasonableness of precautions taken to prevent the disclosure of these documents.
From the timing of the request for their return, the Court also concludes that months went by before plaintiffs' counsel reviewed the documents actually produced. Although counsel wrote a letter promptly after discovering the production of these documents asking for their return, that letter did not come promptly after the production itself. The extent of disclosure appears to be somewhat widespread, given the fact that 33 documents are apparently at issue. Given the fact that these do not appear to be core documents the disclosure of which would greatly prejudice the plaintiffs' case, the interests of justice would not appear to require the Court to overlook the substantial deficiencies in the record concerning the steps taken to prevent the documents from being produced. Under the appropriate intermediate test, the Court concludes that, balancing the available factors, the Court may infer a waiver. That conclusion obviates the need for the Court to conduct any in camera review of the documents at issue.
Based upon the foregoing, the defendants' motion for in camera review (#87) is resolved as follows. The Court concludes that by producing the allegedly privileged documents on January 26, 2007, the plaintiffs waived any privilege which applies to those documents. As a result, the documents may be used by defendants in this litigation.
Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.