In Thorncreek Apartments III, LLC v. Village of Park Forest (N.D. Ill. Aug. 9, 2011), the Northern District of Illinois concluded that a litigant had been negligent throughout the discovery process of a case and as a result waived privilege on inadvertently produced documents. In this particular case, the defendant failed to check the documents being produced before they were made available to the opposing counsel. The defendant explicitly told opposing counsel that they were not withholding any documents and thus did not produce a privilege log. Yet months later in a deposition the defendant objected to the use of certain documents. It was not until four months after the deposition that the defendant provided the plaintiff with a privilege log.

As could be anticipated, the plaintiff filed a motion seeking an order finding that six documents produced by the defendant were not protected from disclosure by the attorney-client privilege. The court did take into account the Sixth Circuit’s three-step inquiry on whether produced documents may retroactively be considered as privileged.

1. Is the document privileged?
2. If it is, was the disclosure inadvertent?
3. Even if the privileged document was inadvertently produced, the court can still determine if the privilege was waived.

The court also applied Federal Rule of Evidence 502 which states that privilege will not be waived if:

1. The disclosure is inadvertent
2. Proper measures were taken to prevent disclosure
3. The holder promptly addressed the error

In its memorandum, the court concluded that the defendant did produce privileged documents inadvertently, but that these privileged rights should be waived because there was no proof that the production had been thoroughly reviewed before submission.

The defendant tried to blame the e-discovery vendor by claiming they thought documents marked as privileged should be understood to be withheld from production. The court didn’t buy this argument noting that it had “little confidence in the reasonableness of the [defendant’s] precautions.”

The vendor was spared in this particular instance yet there are myriad scenarios that are equally plausible and could result in a different outcome. Whatever future outcomes may be, it is important that counsel has an understanding of the e-discovery process.

Although it is important for counsel to understand relevant e-discovery issues and thoroughly review their work product, service providers can and should be a security blanket when possible. For example if tags can be deemed as privileged and the service provider has a protocol in place  to report this  to counsel at the time of production, there is a level of service and value provided to counsel.