#CaseoftheWeekCase Law

#CaseoftheWeek Episode 73: Whether “Reckless” Conduct Will Allow for Waiver of Attorney-Client Privilege

Our case for this week is Sure Fit Home Prods., LLC v. Maytex Mills Inc., 2022 WL 1597000 (S.D.N.Y. 2022) from May 20, 2022. It is a decision from United States Magistrate Judge Gabriel W. Gorenstein where we’ll discuss when the failure to recognize and claim privilege over inadvertently produced materials can be considered “reckless” and lead to waiver. 

Good morning and welcome to episode 73 of our Case of the Week series, published in partnership with ACEDS.

My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys. I am very happy to be here with you today. Thank you so much for joining me each week.

As you know, on our Case of the Week series, we choose a recent decision from our eDiscovery Assistant case law database in an effort to highlight key issues for litigators and those who are involved in the eDiscovery process that allows us to learn to issue spot and pay attention to practical issues that arise in our practice every day.

All right let’s dive into this week’s case. This week’s decision comes to us from Sure Fit Home Products, LLC v. Maytex Mills, Inc. This is a decision from United States Magistrate Judge Gabriel Gorenstein in the Southern District of New York, dated May 20th of 2022.

One of the things that we talk about each week is the number of cases that a particular judge has in our eDiscovery Assistant database. That is, the number of discovery decisions that impact electronic discovery that a judge has authored. In this case, Judge Gorenstein has 32 cases in our database. Many well reasoned decisions on electronic discovery issues.

Today’s case from Judge Gorenstein really touches on attorney-client privilege, waiver, and clawback. As always, we add our issue tags from our proprietary issue tagging structure in eDiscovery Assistant to each case. This week’s decision includes attorney-client privilege, clawback, waiver, attorney-work product, and protective order as issue tags.


What are we before the Court on? We are before the Court on a motion to compel that is seeking production of documents that the plaintiff previously produced for the defendants, but now seeks to clawback as privileged under the protective order in this case. Alternatively, the defendant asked the Court to find that the plaintiffs waived their privilege by allowing the documents to be submitted as an exhibit to a filing in another matter, as well as having produced those documents to the defendants in this matter. We’ve got a situation where the plaintiffs have produced the same three documents in two different cases.

The Court, after going through the analysis we’ll talk about, concludes that the plaintiffs waived any claim to privilege in the documents, which are identified as Exhibits 88, 89, and 90. The Court declined to address the issue of whether or not the exhibits would otherwise be subject to the attorney-client privilege or the attorney-work product doctrine. In essence, the Court is saying, “we first went straight to waiver” and said, “you’ve waived any potential privilege” so it doesn’t even matter whether the privilege applies.

More facts in the case. The parties also entered into a protective order that allowed either side to claw back documents that were produced inadvertently. Now, the decision doesn’t specifically list the language of the protective order, it just says that that the parties agreed to clawback any documents produced inadvertently.

With regard to the documents at issue — those three exhibits that I mentioned, 88, 89, and 90 — the Court looks at the following facts — there are really three different circumstances in which the plaintiffs had already produced these three documents in two different cases.

The first incident occurred in August of 2018, in which the plaintiffs turned over the three documents in a separate patent litigation. In May 2019, the defendants in that case used those three documents as a combined exhibit to a reply brief in support of their motion for summary judgment. At the time that the defendants filed that reply brief with the attached exhibits, the plaintiffs did not object to the use of the documents at all in that other matter.

The second incident also occurred in that other matter in April of 2021. At that time, the defendants designated those same three documents, which they now combined into a trial exhibit number 129, and listed them on their trial exhibit list. At that point, the plaintiffs raised seven separate objections to the documents, but never asserted the attorney-client privilege or attorney-work product as an objection or moved to have the documents protected. Those three documents remain as an exhibit as of the date of this Court’s opinion more than a year later in May of 2022.

The third instance that the Court looked at is that in mid-2021, the plaintiffs then produced the same three documents to the defendant in this matter, the matter that is before the Court on today’s decision. In March of 2022, after the production had already been made, the defendants propounded a request for admission to the plaintiff, asking the plaintiffs to confirm the authenticity of these documents. On April 11, 2022, is the very first time after all of these other incidents have occurred, the plaintiffs respond asserting privilege over one of the three documents — just Exhibit 89. On April 25, 2022, there’s a meet and confer between the parties, at which time the plaintiffs then claim privilege over all three of the documents and seek to claw them back under the protective order.

The plaintiffs also claim to have attempted to claw back the exhibits 88, 89 and 90 in the other matter that we talked about. They pointed to no application made in the court that asserted any claim of privilege. While they made the assertion, what the Court is saying is “we can’t see any evidence of it in the record.”


What’s the Court’s analysis here? What’s going to happen as to whether or not the plaintiffs can clawback those three documents?

The Court starts by stating that the party who invokes the privilege bears the burden of establishing that privilege exists and that it has not been waived. The Court then looks at the language of Federal Rule of Evidence 502(b) and the four factor test that is in place prior to Rule 502 but finds that as the parties agreed to a protective order, that the protective order on file in this case governs that waiver analysis.

There’s no analysis of Rule 502(b). There’s no discussion of any 502(d) order here in this case, which, as Judge Peck has said famously, “that in of itself is per se malpractice.”

Reckless Standard on Waiver

The Court then goes to look at the analysis of how to determine waiver when the parties have agreed to a protective order. The Court says that where the parties have executed a protective order, waiver is appropriate only if production of the privileged material was completely reckless. For a production to be completely reckless, the producing party must have shown no regard for preserving the confidentiality of the privileged documents.

The Court also notes that although reckless is a high bar, it very much feels, based on the facts that we already talked about, that the plaintiffs met it here very clearly. We’ve got to set out standard as recklessness, and the Court saying, “no question here. The plaintiffs have met it.”

The Court found that the fact that the plaintiffs had produced all three of the documents to the other side in two different manners and:

. . . did so in circumstances that later drew the specific attention of plaintiffs to the existence of these documents without their taking corrective action reflects the highest degree of carelessness in handling purportedly privileged material. Courts have held that a party’s failure to object to an adversary’s use of a privileged document, such as during a deposition, is sufficient to constitute waiver even where a protective order applies.

The Court really reiterated that at multiple places in both litigations, the plaintiffs did not object or claim privilege and also notes this language:

This course of conduct spanning several years, two disclosures, and multiple clear opportunities to claim the privilege evidences a total disregard for the confidentiality of any of the documents.

Based on that analysis, the Court found that the plaintiffs had waived any claim to privilege or work product for those three exhibits (88, 89, and 90).


What are our takeaways from today’s case? Well, the facts that are identified in this case are going to be pretty hard to overcome no matter how much protection you have in a protective order or even under Rule 502(b), which is the pretty standard analysis if you don’t have a protective order. If, however, here, the parties had signed a court order under Rule 502(d), they might have been able to at least get past the waiver that was found here to get to an analysis of whether or not the documents were privileged.

As you know from many, many episodes of Case of the Week, FRE 502(d) orders typically provide that:

Production of privileged or work product protected documents, electronically stored information or information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in this case or in any other federal or state proceeding.

Now, because of the facts that we have here, we’d have to do a whole separate analysis as to whether or not a 502(d) order would have precluded waiver in this situation. I think there are not enough facts for me to make any sort of Monday morning quarterbacking judgment with a 502(d) order. It would have, in this particular instance, moved to the plaintiffs from the waiver question to the analysis of whether or not these documents were in fact, privileged.

Generally speaking, of 502(d) order is the broadest protection you can get from inadvertent production in waiver. Relying on any ability for clawback in a protective order really leaves you open to the reckless standard that was imposed here by the Court.

The takeaway is to use the 502(d) order. Get that information out to everybody in your firm, your organizations, whoever you’re talking with, or giving presentations to. Make sure they’re aware of it, and that it is the highest protection for inadvertent disclosure in the federal courts. Many state courts have adopted an equivalent of Rule 502(d) and you really need to be leveraging that. It goes for both sides. Leverage that in your matters that would have helped the plaintiffs here, but unfortunately, a series of what I think all of us litigators can view as an “I can’t believe that happened” moment really led to a serious waiver issue here.

All right, that’s our Case of the Week for this week. Short and sweet. Thanks so much for joining me. We’ll be back again next week with another decision from our eDiscovery Assistant database.

If you are an ACEDS member and interested in using eDiscovery Assistant, there is a discount available to current ACEDS members and a trial for folks taking the ACEDS exam. If you’re interested in either of those, information is available in your ACEDS portal on how to contact us.

If you’re interested in doing a free trial of our Case Law and Resource database, sign up to get started, or you can reach out to us at support@ediscoveryassistant.com to get a demo for your organization.

Thanks so much. Stay safe and healthy out there. We’ll see you next week.

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