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Notwithstanding the easing of the waiver doctrine brought about by the enactment of Fed. R. Evid. 502(b), Fed. R. Evid. 502 does not remove the parties' responsibility to take reasonable precautions against the disclosure of privileged documents. In order to invoke the protections of Fed. R. Evid. 502(b), the holder of the privilege bears the burden of establishing that it took reasonable steps to prevent disclosure in the first place. Fed. R. Evid. 502(b)(2).
Plaintiff Christina Conyers Williams ("Williams") claims that Defendant the District of Columbia (the "District") retaliated against her in violation of the District of Columbia Whistleblower Protection Act, D.C. CODE § 1-615.01 et seq., for testimony that she provided before the District of Columbia Council. The action is currently in the pretrial stage of litigation and there is now a single motion before the Court: the District's Renewed Motion to Exclude Plaintiff's Exhibit 9A ("Motion to Exclude"), through which the District seeks to preclude Williams from using a purportedly privileged communication at trial on the basis that it was inadvertently produced in discovery.
Can the District invoke the protections of Rule 502(b)?
The court found that the District of Columbia's showing was so cursory and incomplete that there was no foundation for the court to evaluate the reasonableness of the precautions taken to guard against inadvertent disclosure. Because the holder of the privilege bore the burden of establishing that it took reasonable steps to prevent disclosure, Fed. R. Evid. 502(b)(2), and since the District failed to discharge that burden, the court denied the District's motion to exclude on that basis. The District's mere compliance with Fed. R. Civ. P. 26(b)(5)(B), did not constitute reasonable steps to rectify the error.