Although I believe my ruling that any applicable privileges had been waived by
release of the Anderson memorandum to the FBI is on solid footing, in order to prevent this issue
from festering I will expand my ruling on Respondent's Motion for a Protective Order so that
the issue of waiver by release of the memorandum to the FBI becomes only an alternative holding. I
also hold that respondent's inadvertent disclosure of the Anderson memorandum to complainant in
discovery waived any applicable privileges.
As I noted in the Order Denying Protective Order , privileged
documents which are inadvertently disclosed to the adverse party during discovery may retain their
privileged status depending on the facts surrounding the documents' disclosure. See, e.g., Texaco
Puerto Rico v. Department of Consumer Affairs, 60 F.3d 867, 883-84 (1st Cir. 1995);
Transamerica Computer Co. v. International Business Machines Corp ., 573 F.2d 646 (9th Cir.
1978) ("IBM "). In Alldread v. City of Grenada , 988 F.2d 1425, 1433 (5th
Cir. 1993), the court listed five factors to consider in determining whether the inadvertent disclosure
of privileged documents should be held to be a waiver of the applicable privileges:
(1) the reasonableness of the precautions taken to prevent disclosure; (2) the amount of
time taken to remedy the error; (3) the scope of discovery; (4) the extent of the
disclosure; and (5) the overriding issue of fairness.
In IBM , the court looked to the number of
documents produced, the difficulty in gathering the documents, the amount of time available to
assemble the documents and then review them for privilege, and the reasonableness of the
precautions taken to segregate privileged documents, in determining whether IBM had waived claims
of privilege for those privileged documents which were inadvertently produced. Respondent comes
up short regardless of which standard is applied.
Turning initially to Alldread , first, I find that respondent's procedures
for identifying those documents it claims are privileged was seriously flawed. Virtually all of the
reviewing of the documents was performed by paralegals, not attorneys, and these paralegals worked
for a litigation support contractor and thus were likely to be unfamiliar with the case (see
Respondent's Motion for a Protective Order at 2-3), guaranteeing that some documents would be
misclassified. Further, for some unknown reason, when being entered into the computer database
each document identified as privileged could only be coded under a single privilege even if more than
one privilege was believed to be applicable. Due to this coding procedure, the Anderson
memorandum was one of hundreds of documents coded as privileged on the basis of the deliberative
process privilege only despite the fact that other privileges may also have applied. After reviewing
only 17 of the hundreds of documents coded as privileged on the basis of the deliberative process
privilege only, Navy counsel decided not to claim privilege for any of these documents. It is clear
that respondent did not take adequate precautions against disclosing privileged documents.
Second, respondent did not act expeditiously in seeking to remedy its error. In
fact, once respondent turned over its discovery responses on February 2, it appears that respondent
did no further checking to determine whether it may have disclosed privileged documents. It was not
until a hastily arranged conference call on April 14, precipitated by a reporter's disclosure to
respondent the day before that he had a copy of the Anderson memorandum, that respondent sought
to have the document returned due to its inadvertent disclosure to the complainant.
Third, although the number of documents respondent had to review in response
to complainant's discovery was substantial respondent claims it had to review about 95,000 pages of
documents and two computer hard drives complainant's discovery was served on October 5, 1999.
On December 14, 1999 I issued an order compelling respondent to respond to this discovery, and
respondent finally turned over the documents on February 2, 2000 (see Respondent's Motion for a
Protective Order at 4), almost four months after the discovery was served. Therefore, respondent
had an adequate amount of time to review the documents responsive to complainant's discovery and
identify those which were privileged. That respondent elected to wait until an order compelling
discovery was issued to start preparing its response to complainant's discovery is no one's fault but
respondent's.
Fourth, the extent of the inadvertent disclosure of privileged documents is
unclear. Although respondent alleged in its Motion for a Protective Order that the Anderson
memorandum was the only privileged document inadvertently disclosed, complainant contended in
response to that motion that over 1400 documents listed in the respondent's privilege log were
produced in response to his discovery. In its motion for reconsideration, respondent did not further
address this issue. Based on respondent's description of the process it employed to review the
documents and how the Anderson memorandum was inadvertently disclosed to complainant (see
above ), it is a virtual certainty that the Anderson memorandum was not the only privileged
document inadvertently disclosed to complainant in response to his discovery.
Finally, it would be hard for respondent to claim that it is unfair to find that its
disclosure of the Anderson memorandum constituted a waiver of any claims of privilege for that
document. Respondent initially refused to respond to complainant's discovery, requiring me to issue
an order compelling discovery. When respondent finally responded to complainant's discovery, its
response was inadequate, resulting in an award of costs to the complainant. That the Anderson
memorandum was disclosed resulted from respondent's taking inadequate precautions to identify and
segregate allegedly privileged documents. There is nothing unfair under these circumstances in
holding that respondent's inadvertent disclosure of the Anderson memorandum waived any claims of
privilege for that document.
Respondent fares no better under the IBM rationale. In determining
that IBM's inadvertent disclosure of about 1100 documents did not serve as a waiver of claims of
privilege for those documents, the Ninth Circuit characterized the accelerated discovery schedule
IBM had to comply with as "onerous," emphasizing the enormous number of documents
(17 million pages) to be produced and then reviewed to determine privilege in only three months.
IBM, supra , at 648. The court also noted that these documents had not been produced during
any previous litigation and they were not grouped together so as to be readily accessible (id .).
The court stated that, under this discovery schedule "it was statistically inevitable that, despite
the extraordinary precautions taken by IBM, some privileged documents would escape detection by
IBM reviewers." IBM, supra , at 652. Under these conditions, the court held it would
be unfair to find that IBM waived its claim of privilege for these documents.
Responding to the discovery in this case in a manner providing sufficient time
for respondent to identify and withhold from production all privileged documents did not require the
"herculean effort" (IBM, supra , at 648) undertaken by IBM, which had less time
to produce and review about 175 times as many documents scattered in over 40 different
locations. Rather, all it would have taken was a reasonable effort to respond to the discovery.
Instead, respondent dragged its feet and made no effort to respond until an order compelling
discovery was issued, and even then its response was inadequate.
Under these conditions, I find that respondent was at fault in disclosing the
document to the complainant. It created the situation requiring it to respond to complainant's
discovery in haste, and took inadequate precautions to avoid disclosing privileged documents.
Respondent has therefore waived any claims of privilege for the Anderson memorandum.
Respondent's motion to reconsider the Order Denying Protective
Order is denied .
JEFFREY TURECK
[ENDNOTES]
1
2 See pp. 2-3 of that motion.
