United States District Court, N.D. Illinois, Western Division
September 2, 2005.
KATHY HUNT and STEVEN HUNT, Plaintiffs,
NORTHWEST SUBURBAN COMMUNITY HOSPITAL, a Delaware corporation, FOREST HEALTH SERVICES CORP., a Delaware corporation, BARIATRIC TREATMENT CENTERS OF ILLINOIS, d/b/a BARIATRIC SPECIALISTS OF ILLINOIS, S.C., an Illinois corporation, BRIAN BOE, M.D., and KENT HESS, M.D. Defendants.
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. Inadvertent Disclosure of Confidential Materials, ABA Formal
Op. 92-368, at 1 (Nov. 10, 1992).
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
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'
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.
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
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