In Phyllis Schlafly Revocable Trust v. Cori, No. 4:16 CV 1631 RWS (E.D. Mo. Mar. 31, 2026), Missouri District Judge Rodney W. Sippel found that “Plaintiffs waived their assertions of privilege” over three documents that were produced, granting in part Defendant’s Motion to Overrule Plaintiffs Claim of Inadvertent Disclosure, but denying Defendant’s request for attorney’s fees and costs.

Case Discussion and Judge’s Ruling

In this case, two of the documents had been produced in January 2023 pursuant to a court order compelling production, while the third – the “October 3rd Bruce Email” – had initially been logged as privileged but was later produced following a Special Master’s directive. The Special Master had explicitly ordered Plaintiffs to “withdraw all assertions of privilege over emails or documents sent to or from (or copying) Roger Schlafly…and produce those documents.” Plaintiffs did not object to this directive and complied with it.

Based on these facts, Judge Sippel was unequivocal in rejecting any attempt to reassert privilege over the October 3rd email. As he explained, “Plaintiffs cannot now reassert their claim for privilege over the same document.”

The more nuanced issue involved the remaining two documents, which Plaintiffs argued were inadvertently disclosed during a large production of approximately 29,000 documents. To assess whether privilege had been waived, Judge Sippel applied the five-factor test from Gray v. Bicknell, which evaluates: (1) the reasonableness of precautions taken, (2) the number of inadvertent disclosures, (3) the extent of disclosures, (4) the promptness of remedial measures, and (5) the interests of justice.

While Plaintiffs emphasized the scale of the production and the possibility of missing a few privileged documents, Judge Sippel’s analysis centered heavily on the fourth and fifth factors – particularly the lack of prompt action once the disclosures were or should have been discovered. Judge Sippel highlighted that the documents had been in Defendant’s possession for years and had been actively used in related litigation. The October 3rd email had even been used in depositions and summary judgment briefing in a separate county lawsuit, and some of the information had entered the public record.

Judge Sippel particularly focused on the timeline surrounding Plaintiffs’ awareness of the issue. Plaintiffs’ counsel was informed in October 2025 that documents from this case were being used in another proceeding. Despite this knowledge, Plaintiffs did not issue a clawback demand until February 12, 2026: approximately four months later. Judge Sippel rejected Plaintiffs’ argument that the relevant trigger for promptness was when counsel personally reviewed the documents, rather than when they were first put on notice.

As Judge Sippel observed, Plaintiffs “learned about privileged materials being used in depositions in the county in October 2025 and should have taken immediate action.”

Judge Sippel also emphasized that Plaintiffs had multiple opportunities over several years to identify and address the disclosure. The engagement letter, for example, had been produced not only in this case but also in another lawsuit dating back to 2018. This pattern reinforced Judge Sippel’s conclusion that Plaintiffs failed to take reasonable precautions and failed to act promptly once the issue came to light.

Turning to the fifth Bicknell factor – the interests of justice – Judge Sippel concluded that fairness considerations also favored a finding of waiver, stating: “Cori has been in possession of these three documents for more than three years. Plaintiffs cannot put the toothpaste back into the tube. Cori already utilized allegedly privileged information in depositions and to survive summary judgment in the county lawsuit. Given that more than three years have passed since Plaintiffs produced the documents, I will not now foreclose Cori’s use the information as part of her strategy in this lawsuit.”

Despite ruling in Defendant’s favor on the waiver issue, Judge Sippel declined to award attorney’s fees and costs under Federal Rule of Civil Procedure 37(b)(2)(C). Defendant had argued that Plaintiffs’ clawback demand violated prior discovery orders, but he disagreed, noting that Plaintiffs had complied with the relevant orders when they were issued and that “Plaintiffs have not committed any of the discovery violations listed in Rule 37 by simply sending the letter.”

So, Judge Sippel ruled: “After carefully considering the parties’ arguments and the factors set forth in Bicknell, I find Plaintiffs waived their assertions of privilege over the documents at issue. I will grant Cori’s motion to the extent that it overrules Plaintiffs’ claims of inadvertent disclosure of allegedly privileged documents. Because Cori has not demonstrated that Plaintiffs violated any discovery orders by sending their clawback demand letter, I will not award Cori reasonable costs and attorney’s fees.”

So, what do you think? Do you agree that Plaintiffs waived their assertions of privilege over the documents? Please share any comments you might have or if you’d like to know more about a particular topic.

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