Carlock v. Williamson, 2011 WL 308608 (C.D. Ill. Jan. 27, 2011)

Facts: Carlock is a prisoner’s rights case. The defendants inadvertently disclosed attorney-client and work product information in e-Discovery. Defendants gave Plaintiff access to its computers after entering a protective order and Plaintiff uncovered the privileged information.

Law: A privilege may be waived if a party discloses privileged materials. Fed. R. Evid. 502(b). If a disclosure is inadvertent, it will not operate as a waiver so long as the attorney takes reasonable steps to prevent disclosure and promptly moves to rectify the error. Id.

Holding: Defendants took reasonable steps to prevent the disclosure and to rectify the inadvertent disclosure.

Reasonable steps to prevent

Defendants entered into a broad protective order, discussed with Plaintiff using key words to limit its search, and emphasized their concern over Plaintiff’s handling of privileged information.

Reasonable steps to rectify

First and foremost, the parties had a protective order in place. Defendants also immediately asserted a claim for privilege when they learned of the disclosure and demanded a log of the communications. The parties then engaged in numerous meet and confer sessions over the course of the next six weeks. When Plaintiff filed a motion to compel and included the protected documents as exhibits, Defendants immediately moved to place the motion and exhibits under seal.

For Clients: Attorneys must take affirmative steps to protect the client’s attorney-client privilege and the work-product privilege. Certain procedural safeguards must be in place not only to protect the privilege, but to “claw-back” an inadvertent disclosure. If information is disclosed, clients should notify their attorneys and attorneys should act quickly to preserve the privilege as soon as they become aware.

Access the full Carlock opinion here.

Contrast with, Kmart Corp. v. Foodstar, Inc., 2010 WL 4512337 (N.D. Ill. Nov. 2, 2010), where the disclosing party did not take reasonable steps to prevent the disclosure because it had no screening mechanisms in place.