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Fed. R. Evid. 502 states that when privileged information is inadvertently disclosed, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is 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, including following Fed. R. Civ. P. 26(b)(5)(B). Fed. R. Evid. 502(b).
On June 4, 2006, plaintiff Stephen I. Amobi, an officer with the Department of Corrections ("DOC"), was involved in an altercation with an inmate. After the altercation, an official at the correctional institution, also a named defendant, called the Metropolitan Police Department. An MPD officer then arrived at the jail and arrested Amobi. Defendants moved for Amobi's summary removal. Amobi had a right to a hearing on his removal, and the hearing officer determined that Amobi should be reinstated. The hearing officer reversed her decision on remand. The Superior Court first dismissed the criminal case against Amobi and then acquitted Amobi in the second criminal case brought against him. Amobi appealed his removal to an arbitrator. During arbitration, the removal hearing officer admitted originally to have recommended Amobi's reinstatement, but plaintiff claims that the hearing officer was pressured to change her recommendation. Amobi won the arbitration and was reinstated. Amobi and his wife brought an action to seek retribution for the injuries suffered as a direct and proximate result of defendants' actions.
Was the memorandum regarding the arbitration protected by the attorney-client privilege?
To grant the motion to quash and the protective order, the court would have to find that there was not a single question that could be propounded to the attorney advisors that would not be objectionable because it would disclose a confidential attorney-client communication or attorney work product. No witness could claim immunity as to facts, and the attorney advisors were no exception. Further, the court could not find that the officer sought the depositions merely to annoy or oppress the attorney advisors. The only permissible area of inquiry was whether the attorney advisors knew that they were submitting documents into evidence that stated that the inmate the officer was accused of harming had been interviewed when they knew that he had not. The court denied the motion to quash the subpoena and the motion for a protective order under Fed. R. Civ. P. 26(c) to preclude the deposition of the attorney advisors. The memorandum regarding the arbitration was not protected by the attorney-client privilege because the none of the sources of information in the memorandum were based constituted confidential disclosure by the client, nor did they allude to any confidential disclosure.