Claw Back of Inadvertently Produced Data Permitted Despite Lack of Rule 502(d) Order
- ILS Team
In Bellamy v. Wal-Mart Stores, Texas, LLC, No. SA-18-CV-60-XR (W.D. Tex. Aug. 19, 2019), a Texas District Judge ruled that Defendant was entitled to “claw back” certain documents it unintentionally produced. However, the Judge still considered the inadvertently produced documents in analyzing Plaintiff’s motion for sanctions and granted Plaintiff’s motion to the extent that the Court ruled that Defendant could not assert any comparative negligence defenses, including arguing that the danger of a pallets being left unattended in the store was an open and obvious danger.
In this slip and fall case, Plaintiff alleged that she sustained injuries when she tripped over a pallet in one of Defendant’s stores. During discovery, a paralegal in Defendant’s counsel’s office inadvertently produced documents that Defendant claimed were privileged under the attorney-client privilege or work product doctrine. In response, Plaintiff argued that some of the inadvertently disclosed documents were not subject to privilege and further that the disclosed documents were evidence that Defendant counsel was acting in bad faith and engaging in discovery abuse.
While noting that “This Court encourages parties to enter into a Rule 502(d) Order,” the Court also remarked that failing to request such an order “was the first of many mistakes by Defendant’s counsel in this case”, so the Court performed an analysis under Rule 502(b) to determine whether the defendant had waived privilege for the inadvertently disclosed documents.
Because Plaintiff ultimately conceded the documents were privileged after an in camera review by the Court, the Court decided not to “dwell on this issue”. But, the Court did remark that “the privilege log was woefully deficient”, noting that it was “unable to ascertain the identities of various recipients of the emails in question.” Nonetheless, finding that the disclosure was inadvertent, that Defendant took reasonable steps to prevent disclosure, and that Defendant promptly took reasonable steps to rectify the error, the Court ruled that “Defendant is entitled to ‘claw back’ the documents it inadvertently produced” under Rule 502(b).