Court Articulates Analysis Under FRE 502, Finds No Waiver of Inadvertently Produced Emai

Coburn Group, LLC v. Whitecap Advisors, LLC, 2009 WL 2424079 (N.D. Ill. Aug. 7, 2009)

In this case, defendant, Whitecap Advisors LLC (“Whitecap”), sought to compel the return of one privileged email and to strike deposition testimony regarding the same. Plaintiff, Coburn Group, LLC (“Coburn”), resisted returning the email arguing that it was not protected work product, that privilege was waived by production, and that Coburn was “entitled” to the email because it revealed that Whitecap had mislead the court. Finding that the email was protected as work product and that no waiver occurred, the court granted Whitecap’s motion.

In responding to Coburn’s discovery requests, Whitecap provided its counsel with approximately 72,000 pages of potentially responsive documents. Counsel assigned two experienced paralegals to review the documents and to separate them into categories, including privileged materials. 40,000 pages were eventually produced. Counsel learned of the inadvertent production only when Coburn’s counsel began to question the author of the email about it at deposition. Counsel for Whitecap objected at that time and re-stated his objection in following days, including in writing. Coburn resisted returning the email and the parties agreed to allow Coburn time to research the issue. Coburn agreed to “quarantine” the email in the interim. Resolution could not be reached, and Whitecap filed a motion to compel the email’s return.

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Source: ediscoverylaw.com