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Fed. R. Evid. 502(b) states that when made in a federal proceeding or to a federal office or agency, 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 (if applicable) following Fed. R. Civ. P. 26(b)(5)(B).
On December 18, 2007, plaintiff Jeff Kandel, proceeding individually and on behalf of all others similarly situated, filed a putative class action in Los Angeles County Superior Court against defendants Brother International Corporation ("BIC") and Brother Industries, Ltd. ("BIL"), challenging the design of defendants' toner cartridges and raising claims of unfair business practices under California Business & Professions ("B.P.C.") Code §§ 17200 et seq. and 17500 et seq. and violation of California Consumer Legal Remedies Act, Civil Code ("Civ. C.") §§ 1750 et seq. On September 17, 2008, plaintiff David Lipper, proceeding individually and on behalf of all others similarly situated, filed a putative class action against defendants BIC and BIL, also challenging the design of defendants' toner cartridges and asserting claims under B.P.C., Civ. C., trespass to chattels and contract similar to those raised by Kandel. On November 3, 2008, District Judge Dale S. Fischer granted plaintiffs' motion to consolidate the two actions.
Were the consumers entitled to an order declaring documents produced by the corporations non-privileged?
The court held that consumers were not entitled to an order declaring documents produced by the corporations non-privileged. The corporations established that the documents, which consisted of stream emails generated by employees, were protected by the attorney-client privilege, Cal. Evid. Code §§ 952, 954, and by the work-product privilege, Fed. R. Civ. P. 26(b)(3). The corporations also showed that the production was inadvertent under Rule 26(b)(5)(B) and Fed. R. Evid. 502(b).