Vendor’s Mistake Results in Inadvertent Production, Court finds No Waiver
Heriot v. Byrne, 2009 WL 742769 (N.D. Ill. Mar. 20, 2009)
In this declaratory judgment action, the parties sought to settle the issue of copyright ownership over a made-for-television movie called The Secret. In the course of discovery, due to a mistake by their “document vendor,” plaintiffs inadvertently produced privileged information. Upon discovery of the inadvertent production, plaintiffs immediately sought to claw back the privileged material. Defendants resisted, arguing that privilege was waived. Undertaking an extensive analysis of recently passed FRE 502 and the previously existing tests to determine waiver, the court ruled in favor of plaintiffs and ordered any remaining copies of plaintiffs’ privileged documents in defendants’ possession returned or destroyed.