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Posts Tagged ‘waiver’

In theory, protecting your privileged attorney-client work product should be a straightforward and simple matter. In a new ruling out of Ohio, Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., (S.D. Ohio Aug. 28, 2012), all the defendants had to do was mark documents as confidential, and make sure not to produce them to opposing counsel. Instead, Medex, the producing party, sent about 7,500 documents to the plaintiffs and included 347 documents it had declared to be privileged.

Can't Un-Waive Privilege

 

WHOOPS. Unfortunately for them, once privileged documents are produced, it’s almost impossible to get them back. At a deposition, the plaintiffs introduced fourteen documents Medex argued should have been privileged. The defendant Medex panicked, arguing that the documents were “inadvertently produced, privileged communications” and had them sequestered during the deposition. They sought to claw them back, which in theory is a mechanism parties have agreed on to return privileged documents that are produced accidentally. However, in practice, the claw back provision is rarely enforced by the courts.

You Have to Earn Privilege

This case is a labor dispute in Ohio, whose privilege rules are the same as the federal standard. Privilege is an important protection, encouraging lawyers to communicate freely with clients. But since privilege narrows the amount of evidence that is discoverable, courts narrowly interpret the rules and put a heavy burden on the party invoking privilege, especially when they try to claim a document was accidentally produced.

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