When deciding whether inadvertently produced documents should be returned a two-step analysis must be done. First, it must be determined if the documents in question are privileged.
It is axiomatic that FRE 502 does not apply unless privileged or otherwise protected documents are produced. Peterson,
at *2 (citing Heriot v. Byrne, No. 08 C 2272, 2009 WL 742769 (N.D.Ill. March 20, 2009)). Second, if privileged documents are produced then a waiver does not occur unless the three elements of FRE 502(b) are satisfied: (1) the disclosure must be inadvertent, (2) the holder of the privilege or protection took reasonable steps to prevent the disclosure, and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Fed.R.Civ.P. 26(b)(5)(B). Plaintiff, the disclosing party, has the burden to prove that the elements of FRE 502(b) have been met. Peterson,
at *2; Heriot,
at *11; Relion, Inc. v. Hydra Fuel Cell Corp., C.A. No. CV06–607–HU, 2008 WL 5122828, at *3 (D.Or. Dec.4, 2008). See also
Ciba–Geigy, 916 F.Supp. at 412. FRE 502(b) opts for a middle ground approach to determine if an inadvertent disclosure operates as a waiver. See
Explanatory Note to FRE 502(b) (revised November 28, 2007);
Preferred Care Partners Holding Crop v. Humana, Inc., No. 08–20404–CIV, 2009 WL 982449, at *4 (S.D.Fla. April 9, 2009) (the intermediate approach and the Rule 502(b) analysis are substantially similar). This is essentially the same approach used in Ciba–Geigy. 916 F.Supp. at 411. Under the Ciba–Geigy
analysis at least five factors are analyzed to determine if a waiver occurred: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) any delay and measures taken to rectify the disclosure, and (5) whether the overriding interests of justice would or would not be served by relieving the party of its error. Id.