A recent case reveals why actively updating a privilege log is critical to those asserting an inadvertent disclosure claim under Federal Rules of Evidence 502. The case was Rhoads Industries, Inc. v. Building Materials Corp. of America, 2008 U.S. Dist. LEXIS 93333 (E.D. Pa. Nov. 14, 2008). In this case, the court held that when privileged documents were inadvertently disclosed by the plaintiff, the defendant did not have to return the documents to the plaintiff unless the documents were promptly listed on a privilege log pursuant to Fed. R. Civ. P. 26(b)(5).

The case has special importance for understanding the application of Fed. R. Evid. 502 because the case was written by Judge Baylson, who was active in the development of Fed. R. Evid. 502. Judge Baylson served as Liaison from the Advisory Committee on Civil Rules and as a non-voting member of the Advisory Committee on Rules of Evidence of the Judicial Conference.

Applied Discovery provides a helpful summary of this case:

Plaintiff claimed to have inadvertently disclosed over 800 electronic documents that were privileged. Defendant sought an order that privilege had been waived due to plaintiff’s careless production and delay in claiming privilege. In a Solomon approach, the Court determined that the inadvertently produced privileged documents that were promptly added to the privilege log pursuant to Fed. R. Civ. P. 26(b)(5) would be returned to the plaintiff due to the interests of justice factor analysis under Fed. R. Evid. 502.  Defendant had not met its burden of proof in showing any prejudice from having to return the documents.

Read Applied Discovery’s full case summary here.

For more on this subject, consider Leonard Deutchman’s article First Take on Federal Rule of Evidence 502 examining the development of FRE 502 and its treatment in Rhoads Industries. Deutchman also wrote Losing the Balance of Rule 502, discussing whether the judge’s use of the analytical tools was flawed, or whether the test for waiver is itself flawed.

Related posts:

1. Ineffective Privilege Review Leads to Inadvertent Waiver in Rolling Document Production – Electronic Discovery
2. Privilege Waived for Failure to take “Reasonable Means” to Preserve Confidentiality – Electronic Discovery
3. Misunderstanding of Vendor’s Software Leads to Waiver of Privilege – eDiscovery
4. In California, the document from Hell — aka The “Privilege Log” – Electronic Discovery
5. EDRM Metrics Privilege Survey – E-Discovery
6. The Dangers of Trusting Technology to Keep Privileged Documents From Opposing Counsel – Electronic Discovery
7. E-Discovery Spoliation and Sanctions
8. Scalability Defined and Why it is Important – Electronic Discovery