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United States District Court, N.D. Illinois, Western Division

September 2, 2005.


The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge


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.

I. History

  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 disclosures.

  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.

  II. Analysis

  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. at 116.

  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 that:

  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. Inadvertent Disclosure of Confidential Materials, ABA Formal Op. 92-368, at 1 (Nov. 10, 1992).

  A. Privilege

  In this case, the court finds that the document mistakenly sent to Plaintiffs' counsel falls within the defined scope of privilege. The information contained in the letter was intended to be communicated to a client, from counsel, regarding the suit for which counsel was hired to defend the client, and the letter provided legal advice with respect to that subject matter. Additionally, privilege has not been intentionally waived by the client.

  B. Inadvertence

  In this case, the court also finds, based on the circumstances surrounding the disclosure, that defense counsel inadvertently sent the document at issue to Plaintiffs' counsel. It appears that defense counsel was sending several faxes at once and mistakenly sent a letter intended for Defendant to Plaintiffs' counsel instead of the letter that was prepared for Plaintiffs' counsel.

  C. Waiver

  Finally, applying the balancing test discussed above, the court finds that privilege was not waived by defense counsel's inadvertent disclosure for the following reasons: (1) the letter sent was clearly marked as "CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION" and was clearly addressed to Defendant, not Plaintiffs' counsel; (2) Plaintiffs' counsel apparently immediately recognized that the letter was faxed in error, and defense counsel, approximately two hours following the inadvertent disclosure contacted Plaintiffs' counsel to rectify the error that occurred over the noon hour; (3) the one page inadvertent disclosure is minuscule compared to the voluminous documents produced in this case and was not produced in the context of formal discovery; and (4) the overriding issue of fairness weighs in favor of Defendant as the document at issue has not been relied upon by Plaintiffs' counsel and admittedly contains no information not already disclosed in prior discovery.

  Because the document at issue was clearly privileged, inadvertently disclosed, and each factor above favors a finding of no waiver, this court has two choices to remedy the situation. First, the court could order the return of the inadvertently disclosed documents (and destruction of any copies of the same) and set up a protective order prohibiting further use of the documents. Second, if the inadvertent disclosure has already been used or further transmitted, and a return of documents and a protective order are ineffective countermeasures, the court can take steps to cure the wrongful use or transmission.

  In this case, the inadvertently disclosed document was almost at once passed along to Plaintiffs' controlled experts following receipt by Plaintiffs' counsel. As such, it would be in the court's discretion to disqualify Plaintiffs' experts from further participation in this case due to their unfairly gained knowledge. However, as the information contained in the one page facsimile does not appear to rise to a level that would "taint" Plaintiffs' experts, and Defendant does not specifically request further remedy beyond the return of the letter and a protective order against its use, the court chooses not to disqualify Plaintiffs' experts. A protective order against further use of the document should suffice.

  III. Conclusion

  Accordingly, Defendant's Motion for a Protective Order is granted. It is hereby ordered that Plaintiffs' counsel do all things necessary to return the original inadvertently disclosed one page document to Defendant and destroy any copies which have been made within seven (7) days. In addition, the court orders that the one page document shall not be used by Plaintiffs for any purpose, including but not limited to, the purpose of having controlled experts rely upon or consider the same. Information contained in the letter may only be used to the extent that the information is disclosed or discovered by other means of discovery. [Page 1011, ]


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