The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This matter is before the court on Defendant Hess's August 17,
2005 Motion for a Protective Order. For the reasons stated below,
Defendant's Motion is granted.
According to Defendant, on August 12, 2005 at approximately
12:00 noon, a draft letter was mistakenly sent by facsimile to
Plaintiffs' counsel. At approximately 12:16 p.m., Plaintiffs'
counsel allegedly left defense counsel a phone message stating in
part: "You sent me a letter. It must have been an error to [the
principal] and to Dr. Kent Hess." At approximately 2:00 p.m.,
defense counsel faxed Plaintiffs' counsel again, stating that an
inadvertent error had resulted in a mix up of fax letters.
Plaintiffs' counsel was requested to return the original
mistakenly sent letter and to destroy copies of the same. On
August 15, 2005, Plaintiffs' counsel informed defense counsel that she would not be able to comply with
Defendant's request because she had already sent the material to
her experts. On August 17, 2005, Defendant Hess filed this Motion
for a Protective Order
The facsimile at issue is a single page of a draft letter. The
letter is addressed to Defendant Hess and defense counsel's
principal, Ms. Temple. The letter is marked in capital, bold,
underlined letters at the top of the page: "CONFIDENTIAL
ATTORNEY-CLIENT COMMUNICATION." The letter discusses expert
Defendant Hess maintains that the letter was and is protected
by attorney-client privilege, and urges the court to order
Plaintiffs' counsel to return the original disclosed document and
to destroy any copies made. Defendant also seeks a protective
order limiting the use of the document by Plaintiffs' counsel.
Plaintiffs do not dispute the facts as laid out by Defendant,
but do state that defense counsel has failed to show how the
document could "in any way harass, injure, annoy or in other ways
harm the Defendant." (Pl.s' Resp., at para. 6). Plaintiffs also
state all the information contained in the letter has been
otherwise disclosed in discovery. Accordingly, Plaintiffs request
that Defendant's Motion be denied and that they be allowed to
utilize the letter in any manner deemed fit.
The court follows a three-part analysis to review claims that
inadvertently produced documents should be protected by attorney
client privilege. See, e.g., Harmony Gold U.S.A., Inc. v. FASA
Corp., 169 F.R.D. 113, 115 (N.D. Ill. 1996). First, the court
must determine as a threshold matter if the documents are indeed
privileged. Id. In the Seventh Circuit, a document is privileged: "(1) Where legal advice of any kind is sought (2)
from a professional legal adviser in his capacity as such, (3)
the communications relating to that purpose, (4) made in
confidence (5) by the client (6) are at his instance permanently
protected (7) from disclosure by himself or by the legal adviser,
(8) except the protection be waived." United States v. Evan,
113 F.3d 1457, 1461 (7th Cir. 1997).
Second, the court must determine if disclosure was inadvertent.
Harmony Gold, 169 F.R.D. at 115. Inadvertence is determined by
examining "the circumstances surrounding the disclosure." Id.
Third, if disclosure was inadvertent, the court must decide
whether the privilege was waived despite inadvertence. Id. at
115. The standard governing waiver in the Seventh Circuit is set
forth in Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122,
1127 (7th Cir. 1997). See Int'l Oil v. UNO-VEN Co.,
170 F.3d 779, 784 (7th Cir. 1999). District courts applying the Dellwood
standard apply a balancing test, weighing: "(1) the
reasonableness of the precautions taken to prevent the
disclosure, (2) the time taken to rectify the error, (3) the
scope of the discovery, (4) the extent of the disclosure, and (5)
the overriding issue of fairness." Mattenson v. Baxter
Healthcare Corp., 2003 WL 22839808, at *3 (N.D. Ill. Nov. 26,
2003) (listing several cases applying the balancing test).
In addition to the line of cases discussed above, American Bar
Association Formal Ethics Opinion 92-3368 squarely establishes
A lawyer who receives materials that on their face
appear to be subject to the attorney-client privilege
or otherwise confidential, under circumstances where
it is clear they were not intended for the receiving
lawyer, should refrain from examining the materials,
notify the sending lawyer and abide the instructions
of the lawyer who sent them. ...