Absent 'Reasonable Precautions,' Inadvertently Produced E-mails Lose Attorney-Client Protection

Absent 'Reasonable Precautions,' Inadvertently Produced E-mails Lose Attorney-Client Protection

In a tough "horse is out of the barn" ruling, a federal court in Ohio held that the unintentional release of 347 e-mails that had been exchanged among members of a corporate litigant's in-house legal team constitutes a waiver of attorney-client privilege over those emails.

Ruling in Inhalation Plastics v. Medex Cardio-Pulmonary, No. 2:07-CV-116, S.D. Ohio, E. Div., Aug. 28, 2012 [enhanced version available to lexis.com subscribers], U.S. Magistrate Judge Norah McCann King said defendant Medex "failed to establish that it took reasonable precautions to prevent the inadvertent disclosure." The judge added that the number of inadvertent disclosures and the magnitude of the disclosures was relatively high.

"Medex provided IPI [Inhalation Plastics Inc.] with notice that it intended to assert a claim of privilege as to the 347 documents ... That notice, however, stated only that documents in IPI's possession might contain inadvertently produced, privileged communications ... Medex did not identify any particular documents covered by the privilege, did not provide a proper privilege log and, beyond conclusory statements, Medex did not state a basis for the claimed privilege ... Consideration of Medex's inaction and failure to comply with Rule 26 leads to the conclusion that Medex failed to take adequate measures to rectify or mitigate the damage of the disclosures."

Magistrate Judge King summarized by holding that "Medex did not take reasonable precautions to protect its privileged information, the number of documents disclosed is significant, no privilege log was provided at the time of disclosure, the contents of some of the documents may be relevant to the heart of the dispute, and Medex made insufficient attempts to mitigate its damage even after it learned of the disclosure."

Takeaways

  • Take reasonable precautions to protect privileged information.
  • Maintain a privilege log.
  • Take serious action to mitigate damage in the event of an inadvertent disclosure.

Learn more by viewing a recent webinar Attorney-Client Privilege in the Global Corporate Setting.

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