In Kyko Global Inc. v. Prithvi Information Solutions, Ltd., No. C13-1034 (W.D. Wash. June 13, 2014), the district court considered whether a defendant had waived the attorney-client privilege where the defendant’s computer was seized by a county sheriff for auction.  The defendant attempted to “format” the hard drive of the computer before it was seized.  The plaintiff, however, purchased the computer at auction and recovered deleted files containing privileged information.  The court examined the issue under a state-law “balancing test” similar to the inadvertent-production rules of Federal Rule of Evidence 502(b).  The court held that the “closest analogy” was found in cases in which a party discovered an opponent’s privileged materials in the trash.  The court held that, in cases where privileged material was discarded in a manner that left it “fully legible,” courts have tended to find waiver.  On the other hand, where a party took steps to prevent another party from reading the discarded material, such as “[w]hen a privileged memo was discarded but torn into pieces,” at least one court found no waiver.  Here, because the defendant attempted to delete the privileged files before the computer was seized, the court held that the facts “bear a closer resemblance to the memo torn into [many] piece than a document simply placed in a trash can.”  The court also expressed concern about the plaintiff’s “investigative activities outside of the discovery process.”