Privilege Was Waived

Privilege Was Waived After Numerous Opportunities to Clawback Missed: eDiscovery Case Law

In LifeBio, Inc. v. Eva Garland Consulting, LLC, No. 2:21-cv-722 (S.D. Ohio May 4, 2023), Ohio Magistrate Judge Kimberly A. Jolson found that after the plaintiff failed to take advantage of numerous opportunities to clawback documents that privilege was waived.

Case Discussion

In this case where the plaintiff alleged breach of contract and breach of good faith and fair dealing, the Court summarized the plaintiff’s failure to clawback privileged documents as follows:

  • Plaintiff disclosed privileged documents on February 24, 2022 and “has not told the Court” what precautionary steps were taken to prevent disclosure of privileged materials.
  • Plaintiff was informed of the disclosure on March 16, 2022 and did nothing with that information until April 11, 2022, after repeated prompting by Defendant. Plaintiff attempted to identify privileged documents through a screenshot of file names, in lieu of using Bates numbers, despite admitting that the privileged documents were included in a “voluminous” production. “And still Plaintiff did not expressly assert privilege over those documents.”
  • Two days later, on April 13, 2022, Defendant asked to confer with Plaintiff, because it perceived that privilege had been waived. Plaintiff never responded.
  • Twenty-two days later, Plaintiff’s counsel allowed its witness to answer questions about the privileged emails in a deposition. And, after the deposition, Plaintiff’s counsel never conferred with Defendant’s counsel or raised the issue with the Court.
  • Seventy-eight days later, Plaintiff’s counsel allowed the CEO of LifeBio to answer questions about the at-issue emails again in her deposition. And, again, Plaintiff did not bring the matter to the Court.
  • On January 19, 2023, 181 days after the deposition, Defendant used the at-issue emails in its summary judgment briefing. Plaintiff did not object.
  • On February 9, 2023, Defendant used the at-issue emails in its response to Plaintiff’s Motion for Summary Judgment. Plaintiff did not object.
  • On February 23, 2023, Defendant again used the at-issue emails in its reply to Plaintiff’s response in opposition to Defendant’s Motion for Summary Judgment. Plaintiff did not object.
  • On March 10, 2023, Plaintiff’s counsel emailed chambers and asked the Court to hold a discovery conference “to address a privileged document inadvertently produced to [Defendant] in discovery.” Plaintiff’s counsel did not ask the Court to seal the filings that included the privileged document or citations to it in any of his email correspondence with the Court.
  • On March 14, 2023, the Court held a telephonic status conference to discuss the instant matter. At no point during the conference did Plaintiff’s counsel ask the Court to seal any of the summary judgment briefing that references the privileged document. And Plaintiff has not requested such a seal since the conference. As such, filings that reference the at-issue email have been available on the public docket since their publication.

Judge’s Ruling

Given that history, Judge Jolson stated: “Plaintiff did not have a heavy burden to assert privilege but still failed to meet it, despite ample opportunity to do so. Instead, counsel for Plaintiff ignored five emails from Defendant’s counsel about the at-issue documents…, and allowed Defendant’s counsel to use the at-issue documents in two depositions. At the deposition for Jeff Sanders, Plaintiff’s counsel stipulated to the at-issue email, then objected to it, then agreed with Defendant’s counsel that the email had been stipulated to…Then, Plaintiff’s counsel allowed the deponent to answer questions about the email…The same thing happened at another deposition two month later. Plaintiff’s counsel objected to the document but allowed questioning to proceed.”

Continuing, she said: “More still, counsel waited over 300 days…—after Defendant used the documents in a fully briefed summary judgment motion…—to attempt to clawback the documents, ‘long after the proverbial cat was out of the bag.’…Put simply, nothing about Plaintiff’s attempts to rectify this situation was attentive, diligent, or even ‘reasonable.’…Nor were they ‘prompt[ ]….’”

Summarizing, Judge Jolson stated: “Now, Plaintiff’s counsel wants the Court to clawback not only the at-issue emails but the deposition testimony of two witnesses and Defendant’s summary judgment briefing. In other words, Plaintiff wants the Court to protect the sanctity of attorney-client communications. But it was Plaintiff’s obligation to treat the privilege like a crown jewel. Plaintiff continually failed to meet its obligations and, as a result, waived privilege.”

So, Judge Jolson ruled that privilege was waived for the at-issue documents and their use in depositions and the use of one at-issue email in the summary judgment briefing, denying Plaintiff’s request to strike the at-issue email from the record.

So, what do you think? Are you surprised that privilege was waived for the at-issue documents? Or are you surprised that the plaintiff even tried to assert privilege after so many opportunities to do so? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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