Note: This is an unpublished decision. Check your jurisdiction’s rules about citing unpublished decisions before citing this case to a court.
Superior Court of Connecticut, Judicial District of Stamford-Norwalk
November 30, 2005
John L. Altieri Jr., Paul R. Koepff (Phv), Ralph P. DeSanto (Phv), Stephanie Lloyd Brill (Phv), Janice D. Kubow (Phv), Kristen D. Perkins (Phv), Dorothy Anne Presley (Phv), O'Melveny & Myers, LLP, New York, NY, Eric D. Stubenvoll (Phv), Mari Henry Leigh (Phv), Meckler Bulger & Tilson, Chicago, IL, for Steadfast Insurance Co.
Paul E. Breene (Phv), Ann V. Kramer (Phv), John H. Doyle, III (Phv), Steven J. Pudell (Phv), Brian T. Valery (Phv), Jean Farrell (Phv), Anderson Kill & Olick, P.C., New York, NY, Fogarty, Cohen, Selby & Nemiroff, LLC, Greenwich, CT, for Purdue Frederick Co., Purdue Pharma L.P., Purdue Pharma, Inc., The P.F. Laboratories, Inc. PRA Holdings, Inc.
Lustig & Brown LLP, Stamford, Christine L. Nici )Phv), Smith, Stratton, Wise, Heher & Brennan, Princeton, NJ, for Gulf Underwriters Insurance Co.
Nici Christine, Princeton, NJ, Desanto Ralph, Koepff Paul, Valery Brian T., New York, NY, for Purdue Frederick Co.
Ryan, Ryan, Johnson & Deluca LLP, Stamford, CT, Louis R. Pepe, Pepe & Hazard, LLP, Hartford, CT, for American International Specialty Lines Insurance Co.
Rucci Burnham Carta Carello & Reill, Darien, CT, for Abbott Laboratories Inc.
*1 Steadfast Insurance Company (Steadfast) and The Purdue Frederick Company (Purdue) entered into a Stipulation and Protective Order (Stipulation) in 2002 regarding the anticipated substantial document discovery in this insurance coverage litigation. For the purposes of this decision the critical portion of that Stipulation is Paragraph VIII which reads in full as follows:
VIII. Inadvertent Production of Privileged Material
1. Inadvertent production of documents subject to work-product immunity, the attorney-client privilege or other legal privilege protecting information from discovery shall not constitute a waiver of the immunity or privilege, provided that the producing party shall promptly notify the receiving party in writing of such inadvertent production.
2. If reasonably prompt notification is made, such inadvertently produced documents and all copies thereof, as well as all notes or other work product reflecting the contents of such materials, shall be returned to the producing party or destroyed upon request of the producing party, and such returned or destroyed material shall be deleted from any litigation-support or other database. No use shall be made of such documents during depositions or at trial, nor shall they be disclosed to anyone who was not given access to them before the request to return or destroy.
3. The party returning such documents may move the Court for an order compelling producing of the material, but such motion shall not assert the fact or circumstances of the inadvertent production as a ground for entering such an order.
On September 7, 2005, this court issued a decision pertaining to the above Paragraph VIII. In that decision the court granted a motion by Purdue requesting the return of certain privileged documents and awarded costs to Steadfast resulting from having to reorient its document files. Steadfast now moves for an order compelling Purdue to produce numerous documents which Purdue has “recalled” pursuant to Paragraph VIII in a manner which Steadfast alleges is an abuse of the Stipulation.
From the various affidavits it appears that by the end of September 2005 Purdue had requested the return of more than four hundred documents on the basis they were inadvertently produced. As it turns out about half of these documents were requested to be returned on the basis of a misunderstanding that they had not been redacted when in fact redaction had occurred prior to their production. Therefore, Purdue has rescinded its request to return these documents. Nevertheless, subsequently, Purdue has requested the return of approximately 80 additional documents.
Steadfast strongly contends that the documents being recalled by Purdue were not “inadvertently” disclosed. To support this contention Steadfast points to the number of documents involved, the fact that on several occasions more than one copy of the document was produced and the careful procedures of document review employed by Purdue in the litigations underlying this coverage case. Steadfast argues that Purdue's position in this regard is nothing more than changing its mind as to whether a document is privileged after having a “second look” at it. Finally, Steadfast also emphasizes the costs and disruptions that necessarily result when a previously produced document is recalled as inadvertently produced, a fact recognized by this court in its previous decision.
*2 Steadfast's arguments carry weight and its concerns are valid but they exist in the face of an agreement voluntarily made by the parties that “inadvertent production” of privileged materials “shall not constitute a waiver of the immunity or privilege.” The standard dictionary definition of the word inadvertent is “unintentional,” “not turning the mind to a matter.” Webster's Ninth New Collegiate Dictionary
(Merriam-Webster, Inc .1988).
The available evidence on whether privileged documents were produced inadvertently is not entirely clear. The affidavits of the lawyers involved are contradictory as to what was said to each other while discussing the issue. The court chooses not to explore that issue further. On a related point Attorney Breene for Purdue states “categorically” that in no case has Purdue sought to pull back a document because it “changed its mind” or reconsidered a privilege designation. On the other hand, Purdue's memoranda have argued that it entered into the Stipulation in order to expedite the production of documents without being “mired by the burden of ensuring perfect privilege designations at the outset.” Memorandum November 7, 2005, 3. These statements have the potential of being contradictory since they contain at least an inference that some privilege designations were made at the time of the initial production.
Nonetheless, there is a scarcity of evidence to establish that the disclosures were not inadvertent, and having considered all of the above factors, the court finds that the record tips toward a finding that the documents in question were inadvertently produced and that Steadfast's motion to compel their production should be denied.
Perhaps in anticipation of this result Steadfast has sought some guidelines from the court with regard to interpretation of the Stipulation. Under the circumstances this is not an unreasonable request and while cognizant of the dangers of such an approach, and aware that this may be little more than tardily locking the barn door since presumably most discovery has been completed, the court will set forth two guidelines for future consideration. First, the court concludes that production of documents without any privilege review whatsoever is not an inadvertent, but rather a purposeful act, and unless there is an explicit agreement between the parties that the producing party may make a privilege review at a later date, an agreement not present here, the privilege or other immunity is waived. Second, the court discerns the purpose of the Stipulation to be protection against the dissemination of privileged material when there was no intent to waive the privilege. However, it is not designed to allow the producing party to consciously change its mind as to whether to claim the privilege. What is a conscious change of mind and what is inadvertence or an unintentional mistake will undoubtedly be difficult to ascertain, as it has already proven to be in this case. Therefore, consistent with the purpose of the Stipulation, the court determines there should be a presumption in favor of finding inadvertence.
The court finds little persuasive power in Ciba-Geigy Corp. v. Sandoz Ltd., 916 F.Supp. 404 (D.N.J.1995). Among other things Magistrate Judge Wolfson followed the middle of the road approach to privilege waiver, and this court has already found that approach not applicable in this case. See Memorandum of Decision, September 7, 2005.
End of Document.