Seger v. Ernest-Spencer, Inc., 2010 WL 378113 (D. Neb. Jan. 26, 2010)
In this personal injury case, the court found a non-party had waived its claims of privilege as to already-produced documents and granted defendant’s motion to compel their production upon finding that disclosure was “knowing and intentional” as evidenced by the non-party’s failure to establish reasonable precautions to prevent disclosure and its failure to timely assert a claim of privilege, among other things. Rejecting claims of undue burden, the court also granted defendant’s motion to compel the non-party’s production of emails after reducing defendant’s proposed search terms to eliminate those deemed irrelevant or overly broad.
Upon receipt of a subpoena for documents, non-party Valmont Industries, Inc (“Valmont”) retained counsel to review documents and identify those that were privileged. Relying on counsel’s determinations, Valmont then produced responsive discovery to the defendant. Six months later, Valmont produced its privilege log. Upon receipt of that log, defendant notified Valmont that certain documents identified as privileged had already been produced. Valmont responded by declaring the documents privileged and seeking the return of at least one particularly sensitive document. Valmont received no response to its attempts to negotiate (via correspondence) the return of the documents but did not seek judicial intervention. Defendant eventually sought to compel production of the disputed documents.
The court took the “middle of the road approach” to its determination of waiver and identified the appropriate five-step analysis:
These considerations are (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) the promptness of measures taken to rectify the disclosure, and (5) whether the overriding interest of justice would be served by relieving the party of its error.