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The United States Court of Appeals for the Ninth Circuit has acknowledged that the attorney client privilege and work product doctrine may be waived by a party's inadvertence.
Plaintiff inadvertently produced privileged documents to defendants in response to the latter’s requests for production of documents. Plaintiff moved the court for a protective order for the return of the said privileged documents. Plaintiff also asked the court that defendant be prohibited from using derived from the inadvertently produced documents in the course of litigation. Each of the defendants filed an opposition.
By inadvertently producing the documents, did the plaintiff waive its privilege?
The court found that plaintiff had waived its privilege with regard to the 71 documents actually produced, such that plaintiff's motion was denied. Although plaintiff took reasonable efforts to avoid the inadvertent disclosure of privileged materials, those efforts failed. Plaintiff's counsel's efforts to correct the error were not reasonably prompt as to the vast majority documents, resulting in their further dissemination. Many of the documents at issue were in the possession of defense counsel, had been provided to clients and experts, and had been relied upon by defense counsel in formulation of a defense in the case. The other issues raised with regard to fairness did not require an order for return of the documents.