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Waiver of the attorney-client privilege by inadvertent production of documents involves an examination of the following elements: 1) the reasonableness of the precautions to prevent inadvertent disclosure, 2) the time taken to rectify the error, 3) the scope of the discovery, 4) the extent of the disclosure, and, 5) the overriding issue of fairness.
The patent holders claimed that the patent infringer had infringed on its patents. The patent holders also claimed that the patent infringer continued to infringe these patents despite having been notified on several occasions of the infringement. The patent holders moved for the return of an allegedly privileged letter, which they claimed was inadvertently delivered to the patent infringers during production of numerous documents. The patent holders filed a motion for return of this letter and for a protective order as to its use in this litigation. The patent holder claimed that the letter was protected by either the attorney-client privilege or the work product doctrine.
Was the letter protected by the attorney-client privilege?
The court rejected the patent holders' motion. The court pointed out that the letter was protected by the attorney-client privilege because it was primarily concerned with giving legal advice to a client. However, the court did point out that the actions of the patent holder in failing to claim the privilege until long after the letter had been produced constituted a waiver of the attorney-client privilege.