Court Finds Inadvertent Production of Privileged Spreadsheets Did Not Effect Waiver

Williams v. Sprint/United Mgmt. Co., 2006 WL 1867478 (D. Kan. July 1, 2006)

This opinion describes the court’s in camera review of mathematical spreadsheets and other documents (“adverse impact documents”) inadvertently disclosed by the defendant, and concludes that no waiver was effected. All five relevant factors considered by the court weighed against finding waiver:

1. The reasonableness of the precautions taken to prevent inadvertent disclosure: Defendant had explained that, prior to production, all the adverse impact documents were converted to TIFF images and were reviewed on the computer screen by attorneys in an effort to avoid production of privileged documents. Defendant further maintained that it implemented document production software (1) to label as "privileged" all privileged documents and portions thereof; and (2) to earmark such documents and portions thereof for inclusion within the privilege log.

Concluding that the measures taken by defendant were reasonable, the court cited the pending amendments to the Federal Rules of Civil Procedure:

Defendant has produced tens of thousands of documents, and literally hundreds of thousands of pages in this case, both in hard copy and electronically. With regard to such a production, the Court finds it instructive to consider the advisory committee’s comment to the proposed amendment to Fed.R.Civ.P. 26(f), which acknowledges that privilege waiver issues "often become more acute when discovery of electronically stored information is sought." The committee goes on to explain that "[t]he volume of such data, and the informality that attends use of e-mail and some other types of electronically stored information, may make privilege determinations more difficult, and privilege review correspondingly more expensive and time consuming. Other aspects of electronically stored information pose particular difficulties for privilege review."

2. The time taken to rectify the error: Plaintiffs did not dispute that defendant sought to rectify the disclosure promptly after actually discovering it.

3. The scope of discovery: “In light of the hundreds of thousands of pages of documents produced by Defendant in this case, the Court has no difficulty concluding that Defendant produced a sufficient number of documents for the Court to find that this third factor weighs against waiver.”

4. The extent of disclosure: Defendant had only produced the documents to plaintiffs and, as ordered by the court, plaintiffs did not utilize or disseminate the documents inadvertently produced.

5. The overriding issue of fairness: Although the disputed materials were relevant to the litigation, the court acknowledged that defendant had produced the relevant, underlying data from which plaintiffs could make their own adverse impact analysis, and that plaintiffs were free to inquire of the actual decision makers as to the basis of their termination decisions.

The court further rejected plaintiffs’ two other arguments on waiver, concluding that a witness’s deposition testimony did not disclose the substance of privileged communications but only revealed the general topic of discussion, and finding that defendant’s assertion of an affirmative defense of good faith did not automatically place advice of counsel at issue.

The court ordered plaintiffs to return the documents, and any copies, to defendant within five days, and prohibited plaintiffs from using the documents in any manner.