Insufficient Precautions Against Inadvertent Disclosure and Inordinate Delay in Seeking Judicial Intervention Waived Any Privilege Otherwise Applicable to Emails

de Espana v. Am. Bureau of Shipping, 2005 WL 3455782 (S.D.N.Y. Dec. 14, 2005)

In this case arising out of the casualty and sinking of a vessel at sea, the defendant (“ABS”) inadvertently produced email communications allegedly protected by the attorney client privilege.

The details of the production are as follows: In March 2005, ABS discovered that its October 2004 production of 8,317 pages of documents included several privileged emails. ABS immediately notified the plaintiff and requested the immediate return or destruction of the original documents and duplicate copies. In May 2005, ABS inadvertently produced duplicate copies of the same allegedly privileged emails. Also in May 2005, ABS learned that 24 pages of handwritten notes had been disclosed to the plaintiff in a production of 24,017 pages of documents that occurred in April 2004. ABS notified the plaintiff of the inadvertent production via email the next day.

ABS repeated its request for the return or destruction of the allegedly privileged emails and notes in July 2005, and the plaintiff responded with an analysis of each document. Plaintiff contended that each document represented ABS’s non-legal discussions of business-related issues, and concluded that none of the documents were privileged.

In November 2005, ABS finally brought the dispute to the court’s attention and requested an order directing the plaintiff to return or destroy the allegedly privileged documents. The court denied the motion, finding that the emails were not privileged because they contained non-legal discussions of business-related issues, and legal issues did not predominate. The court also noted that the emails had been sent to ABS employees outside the legal department, which further supported its conclusion that the emails contained business advice.

The court also concluded that ABS had effected a waiver of any privilege that was otherwise applicable to the emails and notes through its inadequate review procedures and its inordinate delay in seeking judicial intervention. Although ABS maintained that during the review of documents, “counsel distinguished between privileged and non-privileged documents, and supervised the manual and electronic segregation of the documents,” it did not provide any additional information to support its contention that it exercised reasonable precautions to prevent inadvertent disclosure. Finding that ABS had: (1) produced duplicate copies of documents previously inadvertently disclosed, (2) failed to include the documents on its privilege log, and (3) did not mark the documents as privileged, the court declared the procedures used to safeguard the confidentiality of the materials were inadequate, and effected a waiver of any privilege otherwise applicable.