In Baranski v. United States, No. 11-CV-123 (E.D. Mo. June 3, 2015), the district court held that the government had waived privilege over inadvertently produced documents because it failed to take steps to rectify the error until five months after some of the documents were used as exhibits by plaintiff in a deposition. The government produced 5784 pages of Bates stamped documents to plaintiff on a disk. The government intended to exclude 58 privileged documents from the production, but those documents, comprising 570 pages, were nonetheless included on the disk. More than a year later, plaintiff deposed an ATF employee, using two of the 58 documents as exhibits; the ATF employee testified about these documents without objection from government attorneys. Five months later, plaintiff attached several of the 58 documents to a sealed filing with the court. Six days later, government counsel sent a letter to plaintiff informing him that the government had inadvertently produced the documents. Applying the multi-factor “middle” approach, the court determined that the government had failed to demonstrate that it had the right to claw the documents back. Among other things, the court noted that the government knew or should have know at least as early as the date of the deposition that it had inadvertently produced privileged documents, yet it did nothing to seek to rectify the matter until five months later when it reviewed plaintiff’s sealed filing. The court held that, having failed to act promptly to rectify its error, the government waived privilege over the documents.