Wednesday, December 16, 2009
Waiving Away Uniformity: D.C. Opinion Reveals Why Rule 502 Will Not Harmonize Privilege Waiver Practices
The new Federal Rule of Evidence 502(b) provides that:
When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding 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, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
The new Rule was intended to bring "uniformity across the circuits to their once differing treatment of the effect of certain inadvertent disclosures of privilege materials." As can be seen from the recent opinion of the United States District Court for the District of Columbia in Amobi v. District of Columbia Department of Corrections, 2009 WL 4609593 (D.D.C. 2009), however, the Rule is unlikely to bring the desired uniformity.
Stephen I. Amobi, an officer with the Department of Corrections..., was involved in an altercation with an inmate....After the altercation, an official at the correctional institution, also a named defendant, called the Metropolitan Police Department....An MPD officer then arrived at the jail and arrested Amobi. Compl....Defendants moved for Amobi's summary removal....Amobi had a right to a hearing on his removal, and the hearing officer determined that Amobi should be reinstated....The hearing officer reversed her decision on remand....The Superior Court first dismissed the criminal case against Amobi and then acquitted Amobi in the second criminal case brought against him....Amobi appealed his removal to an arbitrator....During arbitration, the removal hearing officer admitted originally to have recommended Amobi's reinstatement, but [Amobi] claim[ed]that the hearing officer was pressured to change her recommendation....Amobi won the arbitration and was reinstated....Amobi and his wife [thereafter brought an action to seek retribution for the injuries suffered as a direct and proximate result of defendants' actions.
During discovery in connection with that action, the plaintiffs served the defendants with document requests.
When it made its production, the District disclosed a memorandum prepared by attorney advisor Repunzelle Johnson on the eve of the arbitration proceedings....After realizing what they had done, defendants' counsel sent a letter to plaintiffs asking for the return or destruction of the confidential document....Plaintiffs...sequestered the document but...refused to destroy it.
The defendants thereafter requested that the court order the plaintiff to return the memorandum and preclude them from using it in connection with their action. The United States District Court for the District of Columbia found that the memorandum was entitled to work product protection but found that:
Just over a year ago, parties in defendants' position in this Circuit would have no argument to protect against waiver; they would simply be dead in the water with an inadvertent disclosure. The District of Columbia Circuit found that any disclosure automatically constitutes waiver, even in the case of inadvertent disclosure.
The court noted, however, that this all changed with Federal Rule of Evidence 502(b), which requires court to apply a three-part test and find that a disclosure does not constitute waiver of the attorney-client privilege or work product protection if:
(1) the disclosure was 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.
The court then proceeded to apply this test and illustrate why the desired uniformity will not be achieved. The court first noted that the Rule does not provide any guidance on the issue of who has the burden of proving waiver and decided to follow its pre-Rules practice of placing the burden on the proponent of the privilege." Other courts, of course, place the burden on the party opposing the privilege.
The court then considered the first part of the test and noted that, before the Rule, some courts
considered a number of factors to determine inadvertency, including the number of documents produced in discovery, the level of care with which the review for privilege was conducted and even the actions of the producing party after discovering that the document had been produced.
Some of these courts have continued to follow this practice after the enactment of Rule 502(b); however, "[o]ther courts have found that Rule 502(b) provides for a more simple analysis of considering if the party intended to produce a privileged document or if the production was a mistake." The court sided with these latter courts, again illustrating why the desired uniformity will not be achieved.
As for the analysis in Amobi, the court did find that the disclosure was inadvertent but found that the defendants did not take reasonable steps to prevent disclosure because "the efforts taken are not even described, and there is no indication of what specific efforts were taken to prevent disclosure, let alone any explanation of why these efforts were, all things considered, reasonable in the context of the demands made upon the defendants."