As with many issues involving the attorney-client privilege, courts take differing positions on whether a litigant inadvertently disclosing a privileged document during a production waives the privilege protection. Two decisions issued by neighboring jurisdictions six days apart highlight this debate.
In Al Odah v. United States, Civ. A. No. 02-828 (CKK), 2004 U.S. Dist. LEXIS 20968, at *30 (D.D.C. Oct. 20, 2004), the court noted that “the District of Columbia Circuit Court takes the strictest position on [attorney-client privilege] waiver [and] … utilizes the traditional approach that any disclosure of privileged material works a waiver of the privilege.” Six days later, the District of Maryland federal court applied the more common “fact intensive” analysis, which examines such factors as the privilege review process a litigant establishes, the number of privilege documents that slipped through, and how quickly the producing party sought their return. The court concluded that “although the number and the extent of the disclosures was substantial,” the disclosure resulted from “only one mistake” and therefore did not cause a waiver. F.H. Chase, Inc. v. Clark/Gilford, 341 F. Supp. 2d 562, 563, 565 (D. Md. 2004).
Unfortunately, huge document productions sometimes involve mistakes – and predicting the effect of a mistake depends in large part on the court’s approach to waiver.