In Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 07-116 (S.D. Ohio Aug. 28, 2012), the district court held that a defendant waived privilege with respect to 347 pages of emails, attachments, and other material that it produced to the plaintiff but later claimed was privileged.  The inadvertent production appeared to have occurred because of a breakdown in an e-discovery production process.  The court applied a five-factor test, developed from Federal Rule of Evidence 502(b), to determine whether the documents could be “clawed-back” as inadvertently produced: (1) the reasonableness of the precautions taken in view of the extent of document production; (2) the number of inadvertent disclosures; (3) the magnitude of the disclosure; (4) any measures taken to mitigate the damage of the disclosures; and (5) the interests of justice.  The court held that each factor weighed against the defendant’s claim of inadvertent production.  Among other things, the court focused on the fact that the 347 pages were contained in a partial production of 7,500 pages, meaning that 4.6% of the pages were mistakenly produced.  The court found that percentage “relatively high” and supportive of a finding of waiver.  The court also faulted the defendant for failing to provide a privilege log or other detailed explanation for the claim of privilege over each specific document.