Silverstein v. Fed. Bureau of Prisons, 2009 WL 4949959 (D. Colo. Dec. 14, 2009)

Key Insight: Defendants waived claims of privilege as to specific memorandum where, despite initially identifying the memorandum as privileged and placing it on the privilege log, defendants subsequently produced the memorandum and, upon realizing their mistake, failed to properly and timely re-assert the privilege or to take reasonable steps ?rectify the erroneous disclosure?; waiver was intentional where defendant failed for nearly 11 months to clarify the status of the document following its production despite a ready ability to do so and, where plaintiff was prejudiced as a result, court found ?fairness dictat[ed]? that plaintiff be allowed to proceed with discovery and that ?to the extent questions and documents ?concern the same subject matter? as that disclosed in the [memorandum], ?they ought in fairness to be considered together.??

Nature of Case: Constitutional claims

Electronic Data Involved: Privilege memorandum