Opinion
05 Civ. 639 (GEL)(KNF).
February 2, 2007
MEMORANDUM AND ORDER
On May 22, 2006, and again on May 24, 2006, the defendants disclosed to the plaintiffs two memoranda they contend were inadvertently released to the plaintiffs and should have been withheld from disclosure under the attorney-client communication privilege and the work product doctrine. During a December 14, 2006 deposition, the defendants realized that the plaintiffs possessed one of the memoranda. At that time, the defendants announced that the memorandum constituted attorney work product and had been disclosed inadvertently. The defendants asked the plaintiffs to refrain from using the document and to return it to the defendants "forthwith." The plaintiffs advised the defendants that any protection the document might have enjoyed was waived by the defendants because of the multiple times the defendants had provided the memorandum to them.
The memoranda were provided to the plaintiffs twice because the plaintiffs were unable to view the documents in the electronic format in which they were received on May 22, 2006. To rectify that problem, the memoranda were provided to the plaintiffs anew, on May 24, 2006, in a different format.
The following day, the defendants discovered that the second memorandum, which they contend is also protected from disclosure by the work-product doctrine, had also been disclosed to the plaintiffs, inadvertently. The defendants advised the plaintiffs of their discovery, through a writing, informed them that both memoranda constituted attorney-work product and demanded that the plaintiffs return the memoranda to them.
In response, the plaintiffs submitted a writing to the Court through which they presented the controversy to it, for resolution. Thereafter, the defendants wrote to the Court and urged it to find that the pertinent memoranda are not only protected by the work-product doctrine, but are also shielded from disclosure by the attorney-client communication privilege. The defendants explained that two teams of attorneys — one in New York and the other in the District of Columbia — reviewed material potentially responsive to the plaintiffs' discovery demands before determining that approximately 158,730 documents comprised of 1.5 million pages should be disclosed to the plaintiffs. According to the defendants, despite their predisclosure review exercises, the two memoranda were disclosed, inadvertently. Therefore, the defendants requested that the Court issue an order barring the plaintiffs from using the memoranda in this action.
The plaintiffs oppose the defendants' application. They contend the two memoranda are not protected by the work-product doctrine and, alternatively, that the defendants have waived any asserted privilege by failing to take precautions to prevent the disclosure of the memoranda and by failing repeatedly to safeguard the documents from disclosure to them.
The work-product doctrine prohibits a litigant from making unwarranted inquiries into the files and the mental impressions of an adverse party's legal counsel. See Hickman v. Taylor, 329 U.S. 495, 510, 67 S. Ct. 385, 393 (1947). After conducting an in camera review of the two memoranda and considering the parties' respective written submissions, the Court finds that the two memoranda are attorney work product and are protected from disclosure by the work-product doctrine. Typically, the voluntary production of a document that is shielded from disclosure by the work-product doctrine waives any claim by a litigant that the document may be withheld from disclosure under that doctrine. See U.S. v. Rigas, 281 F. Supp. 2d 733, 737 (S.D.N.Y. 2003).
In order to determine whether the work-product doctrine protection has been waived by a litigant's alleged inadvertent disclosure(s) of material, the courts in this judicial district typically weigh four factors: (1) the reasonableness of the precautions taken by a party to avoid the inadvertent disclosure of privileged documents; (2) the volume of material disclosed during discovery, compared to the volume of the specific disclosure at issue; (3) the length of time taken by the producing party to correct the disclosure error; and (4) the overarching issue of fairness. See id. at 737-38.
In the case at bar, the Court cannot say definitively that the defendants' decision to divide the responsibility for conducting predisclosure document reviews among teams of attorneys in two different cities, rather than assigning responsibility for performing that task exclusively to attorneys in New York, who appear to be directing the litigation, was unreasonable. However, that decision contributed greatly to the disclosure mishap that occasioned the instant application. In any event, the Court finds that, in the light of: (a) the total number of documents produced by the defendants to the plaintiffs during discovery; (b) the defendants' immediate assertion of the work-product doctrine protection, after becoming aware of the disclosures; (c) the defendants' prompt request for the return of the documents; and (d) the lack of any showing that invoking the work-product doctrine protection with respect to the memoranda will prejudice the plaintiffs, the inadvertent voluntary disclosure of the memoranda does not constitute a waiver by the defendants of the work-product doctrine's protection. Therefore, the plaintiffs must return the pertinent memoranda to the defendants and, pursuant to Fed.R.Civ.P. 26(c), they shall not use the information gleaned from the memoranda for any purpose in this litigation.
Inasmuch as the Court has determined that the memoranda are shielded from disclosure by the work-product doctrine, no analysis of the attorney-client communication privilege, as it relates to the two memoranda is needed.
SO ORDERED: