In a July 12, 2011 decision by Justice Pines, the court denied the defendant law firm’s motion for an order directing the plaintiff to return documents produced to it which were purportedly privileged and to enter a protective order.  The court rejected the firm’s argument that it had produced documents pursuant to a protective order and, therefore, was entitled to the return of documents under a clawback provision of that order, upon finding that that protective order did not apply to the firm and, even if it did, applied only to the inadvertent production of documents. The court found that the firm failed to satisfy its burden that it intended to maintain the confidentiality of the materials and took steps to do so and that it promptly sought to remedy the production of privileged materials because the firm’s production of the files even after its request for a waiver of the attorney-client privilege was denied demonstrated that there was no inadvertent production and that it knew that certain files contained privileged materials, thereby waiving the privilege. The court also found that the firm did not act promptly to assert a claim of privilege, because it did not seek the return of the purportedly privileged documents until 15 months after it produced them.

South Shore neurologic Assoc., P.C. v Ruskin Moscou Faltischeck, P.C., Sup ct Suffolk County, July 12, 2011, Pines, J, Index No. 27295-2010