Court Enforces Clawback Provision; Producing Party to Pay Expenses for Deletion of Inadvertently Produced Email from Database

Steadfast Ins. Co. v. Purdue Frederick Co., et al., 2005 WL 2433042 (Conn. Super. Ct. Sept. 7, 2005) (Unpublished)

In 2004, Purdue Frederick Co. (“Purdue”) produced email in connection with this difficult and document intensive insurance coverage dispute. About nine months following this production, Steadfast Ins. Co. (“Steadfast”) filed and served an affidavit opposing a motion for partial summary judgment which used this email in an exhibit. Purdue then gave notice that the email had been inadvertently produced and filed a motion seeking relief.

Parties had agreed to an Amended Stipulation and Protective Order (“Stipulation”). Under the Stipulation, the inadvertent production of privileged material would not constitute waiver if the producing party promptly notified the receiving party in writing of such inadvertent production. Inadvertently produced material would be returned or destroyed upon request. The party returning the material could file a motion to compel production, but could not “assert the fact or circumstances of the inadvertent production” as grounds for entering the order. Judge Hodgson had approved this agreement.

Purdue argued that the email should be returned because it is privileged. Steadfast disagreed, claiming that Purdue failed to meet and confer as required under Practice Book �� 13-10(c), the email is not privileged, Purdue could not claim privilege due to intentional production, and Purdue failed to give reasonably prompt notice of the allegedly inadvertent production.

The Court held as follows:

-Court rules as described in Practice Book �� 13-10(c) are not grounds to deny the motion. The dispute does not fall under “objections to request to produce.”

-The email constitutes communications involving Purdue’s counsel and its corporate officers regarding how to present information regarding OxyContin matters to representatives of Purdue’s insurance. It is mostly privileged and entirely work product.

-It cannot be concluded that Purdue knowingly produced the email and that waiver had occurred. The Stipulation precludes analysis under the Harp v. King, 266 Conn. 747 (2003) “middle of the road” standard – facts and circumstances are not to be taken into account, only inadvertence.

-Despite nine months having passed since production of the email and Purdue’s notification of inadvertent production, less than two days had past since service of Steadfast’s document which included the email. There is no evidence that Purdue knew of the production before receiving Steadfast’s document, so notification was reasonably prompt.

-Based on the difficulty of deleting the material from Steadfast’s databases after nine months, Purdue is ordered to pay Steadfast’s reasonable expenses in connection with this endeavor.