Turner v. Brave River Solutions

2003 DNH 104

• Court: District Court, D. New Hampshire
• Decided: June 18, 2003
• Docket: CV-02-148-JD
• Status: Published

Opinion

Turner v . Brave River Solutions CV-02-148-JD 06/18/03 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Paul Turner

v. Civil N o . 02-148-JD Opinion N o . 2003 DNH 104 Brave River Solutions, Inc.

O R D E R

Plaintiff moves to exclude the use of attorney-client

privileged information which was inadvertently disclosed.

Background

During discovery plaintiff produced 2,093 documents to the

defendant. Document n o . 2 5 , Aff. McNamee, ¶ 5 . In addition, he

produced two other boxes of documents for review. Id. ¶ 6. The

latter were reviewed by defense counsel on November 1 3 , 2002,

before the close of discovery. Id. ¶¶ 7-8. After the close of

discovery plaintiff’s counsel, as a courtesy, permitted a second

review of the discovery material. Id. ¶ 8 . At the second review

Ernest Yenke, owner of defendant, was present and, while he

started his review, both counsel stepped out of the room to

discuss other matters. Document n o . 2 9 , Aff. Yenke, ¶ 1 5 .

Unfortunately, after the first review of the discovery materials

a file clearly marked as follows was placed in the box: “Work Product File: and

“Turner - work product w/held from opposing counsel 11/13/02".

Despite the clear labels on the file, the owner of defendant

opened the file and read i t . Id. ¶ 1 6 . It was clear to Yenke

that the materials involved e-mails between plaintiff and his

client. Id. He copied in hand a March 2 8 , 2002 e-mail from

Attorney McNamee to Turner. Plaintiff’s counsel, after learning

of the inadvertent disclosure, promptly addressed the inadvertent

disclosure by reasserting privilege and by providing defense

counsel with ABA Ethics material on inadvertent disclosure.

McNamee, ¶ 1 6 .

Defense counsel has included at least part of Yenke’s

handwritten copy of one of the e-mails from counsel to his client

on page 26 of the defendant’s “Motion for Summary Judgment.”1

Document n o . 2 1 , p.26.

Discussion

The parties agree that the material at issue was privileged.

They also agree that the disclosure of the material was

1 I will not comment on why counsel quoted this e-mail when it has no evidentiary value. However, it is certainly the type of practice that leads to an increasing lack of civility and increased court supervision

2 inadvertent. The issue is whether the inadvertent disclosure in

the factual setting forth above effects a waiver of the

privilege.

In Amgen, Inc. v . Hoechst Marion Roussel, Inc., 190 F.R.D.

287 (D. Mass. 2000) Chief Judge Young detailed the three

different approaches taken by courts to the issue of inadvertent

discovery of privileged communications. Stated simply they are:

a. The “never waived” approach, which is that a disclosure that is merely negligent can never effect a waiver; b. The “strict accountability” rule, which is that disclosure automatically effects a waiver regardless of the intent or inadvertence of the privilege holder; and

c. The “middle test” in which waiver is decided by consideration of “(1) the reasonableness of the precautions taken to prevent inadvertent disclosure, (2) the amount of time it took the producing party to recognize its error, (3) the scope of the production, (4) the extent of the inadvertent disclosure, and (5) the overriding interest of fairness and justice.” Id. (citations omitted).

Judge Young went on to analyze first circuit law and concluded

that it has not adopted the strict accountability approach. Id.

at 291. I agree with his analysis and conclusion. I also agree

with his conclusion that the “middle test” is the preferable

3 test. To the extent that United States v . Cardiges, 881 F. Supp.

717, 726 (D.N.H. 1995) applied the “strict accountability” test

it is not binding and I do not adopt i t . Instead, I adopt the

“middle test”.

Applying the considerations suggested by the “middle test” I

find that the inadvertent disclosure in this case has not

effected a waiver.

1. Reasonable precautions. During the discovery period

the documents at issue were removed from discovery documents and

counsel reviewed and copied the latter without any physical

exposure to the former. After the discovery period closed the

privileged documents were kept in a separate file clearly labeled

as “Work Product File” and “Turner - work product w/held from

opposing counsel 11/13/02", but the file was refiled in among the

documents. After the discovery deadline, at a time when neither

defendant nor its attorney had any right to further examine the

documents, plaintiff’s counsel permitted a further review

obviously as a courtesy unlikely to be repeated. While

plaintiff’s counsel may be faulted for not re-reviewing the box

of documents, the segregation of the privileged documents into a

clearly marked privilege file is a sufficiently reasonable

4 precaution against inadvertent disclosure to a reasonable person

of average intellect and a modicum of integrity.

2. Timely Recognition. The inadvertent disclosure was

detected and privilege reasserted within four (4) days.

3. Scope of Production. The particular production was

approximately 2,093 pages.

4. The Extent of Inadvertent Disclosure was nine pages.

The production of 9 pages among 2,093 in a clearly marked file

after the deadline is a deminimus oversight.

5. Fairness and Justice. Allowing defendant and defense

counsel to have these privileged documents would be unfair and

unjust.

a. Defendant’s president decided “HE personally wanted to review the documents produced in October himself.” Document N o . 2 9 , p . 4 . As a courtesy, not as a right, he was permitted to do s o .

b. Yenke abused the courtesy by opening, reading and copying a file which any reasonable person of average intelligence and a modicum of integrity would have recognized was confidential and asked if there was an intentional waiver before reading.

c. To pour salt in the wound defense counsel quoted one of the documents in her summary judgment motion for reasons which do not appear to have been evidentiary.

5 Fairness and justice and a consideration and balancing of the

other factors require the following:

Plaintiff’s motion is granted and (1) defendant,

defense counsel and Yenke are to return every note,

memorandum or document containing any part of the

language in the privileged file and (2) defense counsel

is to file a revised summary judgment motion deleting

all of page 26 after the third line whereupon document

n o . 21 will be struck and the revised motion will be

substituted.

SO ORDERED.

James R. Muirhead United States Magistrate Judge Date: June 1 8 , 2003

cc: James M . McNamee, Esq. Debra Dyleski-Najjar, Esq.