Sweet, Robert W., United States District Judge
Trial court ordered plaintiffs to return inadvertently produced documents, including all copies, contained on an allegedly privileged CD because defendants clearly intended to withhold the allegedly privileged documents. But the court ruled that the plaintiffs could rely on knowledge gleaned from review of the alleged privileged documents for purposes of challenging the defendants’ assertion of privilege.
In response to plaintiffs’ request for production of ESI, which consisted of hundreds of thousands of documents, defendants produced documents contained on a CD. But defendants inadvertently produced two sets of identical documents; one set was heavily redacted, while the other set was wholly unredacted. Defendants promptly sent a letter to plaintiffs’ counsel invoking Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 502’s clawback provisions and requesting that plaintiffs promptly return the CD and delete both hard copies and any electronic copies of the documents contained on the CD.
Plaintiffs agreed to return the CD, but claimed that they were allowed to retain one hard copy in order to litigate any of defendants’ claims of privilege.
Relying on Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159 (2d Cir. 1992), the court held that plaintiffs were obligated to return all copies, but allowed plaintiffs to use the information learned from their review of the CD for purposes of challenging any of defendants’ claims for privilege.
v.
CITY OF NEW YORK, et al., Defendants
Counsel
Cohen & Fitch LLP, by: Gerald M. Cohen, Esq., Joshua P. Fitch, Esq., the Law Offices of Jon L. Norinsberg, Esq., by: Jon L. Norinsberg, Esq., Quinn Emanuel Urquhart & Sullivan, LLP, by: Stephen R. Neuwirth, Esq., Steig D. Olson, Esq., New York, NY, for the Plaintiffs.Zachary W. Carter, Corporation Counsel of the City of New York, by: Qiana C. Smith–Williams, Esq., New York, NY, for the Defendants.
OPINION
If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.