Courts continue to weigh the reasonableness of the protocols implemented to protect privileged data from inadvertent disclosure. Such determinations focus on the casespecific facts and the legal defensibility and reasonableness of the protocol utilized.

In a recent decision regarding the inadvertent production of privileged materials, Magistrate Judge Sidney I. Schenkier found that the defendant had waived the privilege as to certain documents produced in discovery. Thorncreek Apts. III, LLC v. Vill. of Park Forest, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011).

The defendant hired an outside vendor, Kroll On-Track (“Kroll”), to assist with the review and production of backup tapes. Kroll searched the backup tapes using key words agreed upon by the parties and/or the court, placing the results of those searches into an online database accessible only to the defendant’s counsel. Kroll later moved all documents identified as responsive into an online production database, which was then made available to the plaintiff’s counsel. During the production process, some items that the defendant’s counsel identified as “privileged” were inadvertently disclosed to the plaintiff. The defendant did not provide a privilege log or otherwise inform the plaintiff that privileged documents were being withheld. During a deposition, the defendant objected to the use of “privileged” materials; shortly thereafter, the defendant’s counsel informed opposing counsel that privileged materials had been inadvertently produced. Four months later, defendant finally produced a list of the inadvertently produced privileged documents. After the parties resolved their disputes over most of these documents, the plaintiff asked the court to determine whether the final six documents were privileged, and if so, whether the privilege had been waived.

Magistrate Schenkier found that at least some of the communications were privileged, then noted that Rule 502(b) provides that the attorney-client privilege is not waived if “(1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error.”

After reviewing the facts of the case, Magistrate Schenkier noted that the defendant’s evidence of its review efforts “fell well short of what [the court] would expect for an adequate account of the review procedure, especially in light of the fact that the [defendant] did not submit an affidavit” on the point. The court also noted that “[i]t would have been a simple matter for the [defendant] to check the production database created by Kroll—before it went live online and became available to [the plaintiff]—to verify that privileged documents were not disclosed.” Ultimately, Magistrate Schenkier held that the privilege had been waived, finding that while a significant volume of data (approximately 250,000 pages) was produced, the defendant had a generous amount of time to make its production, and it “was not paying any attention whatsoever to what documents its opponent in the litigation was selecting and obtaining from the database.”