1

Neither party accepted the court’s offer to hold oral

argument, so the motion will be decided on the pleadings. See LR

7.1(d).

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Industrial Communications

and Wireless, Inc., et al.

v. Civil No. 07-82-JL

Opinion No. 2008 DNH 136

Town of Alton,

New Hampshire, et al.

MEMORANDUM AND ORDER

After counsel for the plaintiffs inadvertently disclosed

privileged information, the defendants, who have submitted this

information in support of their motion for summary judgment, see

Fed. R. Civ. P. 56 (c), asked this court to determine what

effect, if any, counsel’s production had on his client’s

privilege. For the reasons that follow,1

 the court finds that

the plaintiffs’ privilege has been waived. 

Case 1:07-cv-00082-JL Document 49 Filed 08/07/08 Page 1 of 10
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I. BACKGROUND

As part of the discovery in this case, plaintiffs’ counsel

made over four bankers’ boxes of documents available to the

defendants for review. Included within these boxes--containing

thousands of pages of documents--was a three-page letter that the

plaintiffs’ former counsel had written to the plaintiffs advising

them on one of their claims (“the Duval letter”). On March 7,

2008, the defendants’ counsel was allowed to review the contents

of these boxes. As she came across documents that she wanted

copied, defendants’ counsel identified them with blue post-it

notes marked “Copy.” On the Duval letter, however, she added

“Copy unless privilege claimed.” All told, defendants’ counsel

set aside a one-inch thick stack of documents, requesting copies

thereof.

Less than two weeks later, plaintiffs’ counsel produced

copies of the documents that defendants’ counsel had identified,

including the Duval letter. In a cover letter accompanying these

disclosures, plaintiffs’ counsel wrote:

Enclosed please find copies of the documents

from our file that you requested relative to

the above matter.

As we discussed, a couple of the documents

are work-product but, because Attorney Duval

and/or his colleagues will be submitting

affidavits which rely on those documents, the

Case 1:07-cv-00082-JL Document 49 Filed 08/07/08 Page 2 of 10
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Applicants are making a limited waiver of

that privilege. 

 

On May 19, 2008, the defendants filed a motion for summary

judgment, attaching the Duval letter as a supporting exhibit. 

On June 16, 2008, approximately four weeks after receiving

the plaintiffs’ summary judgment papers, and over fourteen weeks

after he first disclosed the Duval letter to opposing counsel,

counsel for the plaintiffs sent defense counsel an e-mail

informing her, for the first time, that he considered the Duval

letter “to be an inadvertently produced attorney-client

communication within the meaning of FRCP 26(b)(5)(B).” This email generated the discovery dispute culminating in the motion at

bar. 

II. ANALYSIS

“The inadvertent production of a privileged document is a

specter that haunts every document intensive case.” FDIC v.

Marine Midland Realty Credit Corp., 138 F.R.D. 479, 479-80 (E.D.

Va. 1991). Rule 26(b)(5)(B) of the Federal Rules of Civil

Procedure addresses the situation where one party inadvertently

discloses privileged material to the opposing party. But while

Rule 26 establishes a procedure for the disclosing party to

Case 1:07-cv-00082-JL Document 49 Filed 08/07/08 Page 3 of 10
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After the disclosing party asserts its privilege, the

receiving party “must promptly return, sequester, or destroy the

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.” Fed.

R. Civ. P. 26 (b)(5)(B). Defendants’ counsel did nothing to

violate this rule, as she was not apprised of adverse counsel’s

claim of privilege until after her use of the Duval letter as a

summary judgment exhibit. 

4

assert its privilege,2

 it does not address what effect the

disclosure has on the asserted privilege. 

“Doctrinally, the question is under what circumstances, if

any, an inadvertent disclosure of privileged communications

constitutes a waiver of the privilege. Courts across the country

approach this question in any of three different ways.” Amgen

Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. 287, 290 (D.

Mass. 2000). Stated simply, the three approaches are: 

“a. The ‘never waived’ approach, which is

that a disclosure that is merely negligent

can never effect a waiver;

b. The ‘strict accountability’ rule, which

is that disclosure automatically effects a

waiver regardless of the intent or

inadvertence of the privilege holder; and 

c. The ‘middle test’ in which waiver is

decided by consideration of (1) the

reasonableness of the precautions taken to

prevent inadvertent disclosure, (2) the

amount of time it took the producing party to

recognize its error, (3) the scope of the

production, (4) the extent of the inadvertent

Case 1:07-cv-00082-JL Document 49 Filed 08/07/08 Page 4 of 10
3Judge Selya’s opinion in Texaco, which undertakes no

consideration of competing factors, all but expressly adopted the

strict accountability approach: “It is apodictic that

inadvertent disclosures may work a waiver of the attorney-client

privilege. (citations omitted). Thus, it beggars credulity to

argue that the district court erred in entering a turnover order

anent the four documents to which Texaco's representatives

previously had been exposed.” Texaco, 60 F.3d at 883. 

5

disclosure, and (5) the overriding interest

of fairness and justice.”

Turner v. Brave River Solutions, Inc., No. 02-148-JD, 2003 U.S.

Dist. LEXIS 10298, at *3 (D.N.H. June 18, 2003) (Diclerico, J.,

adopting the “middle test” as the appropriate approach). 

Arguably, the First Circuit adopted the strict

accountability approach in Texaco P.R. v. Dept. of Consumer

Affairs, 60 F.3d 867, 883 (1st Cir. 1995).3 But while a number

of district courts in this circuit have utilized this approach,

see Ares-Serono, Inc. v. Organon Int’l B.V., 160 F.R.D. 1, 4 (D.

Mass. 1994); Int’l Digital Systems Corp. v. Digital Equip. Corp.,

120 F.R.D. 445, 449-50 (D. Mass. 1988), the more recent trend has

been to utilize the middle test. See Turner v. Brave River

Solutions, Inc., 2003 WL 21418540, *1-2 (D.N.H. June 18, 2003)

(“the ‘middle test’ is the preferable test”); Amgen, 190 F.R.D.

at 291 (“this Court aligns itself with those [courts] which

employ the ‘middle test’”); Milford Power Ltd. v. New Eng. Power

Co., 896 F.Supp. 53, 58 (D. Mass. 1995). 

Case 1:07-cv-00082-JL Document 49 Filed 08/07/08 Page 5 of 10
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The court sympathizes with the associate in question, and

recalls his own gaffe as a first-year associate in faxing

privileged materials directly to the offices of adverse counsel. 

A career change to the more forgiving world of criminal

prosecution followed soon thereafter. 

6

Nevertheless, whether this disclosure is analyzed under

strict accountability (where disclosure waives all privilege) or

the middle test, the outcome is the same; under these facts, the

plaintiffs waived any privilege to the Duval letter.

A. Reasonableness of precautions

The defendants argue that plaintiffs’ counsel failed to take

reasonable precautions to prevent the inadvertent disclosure. 

Specifically, the defendants argue that plaintiffs’ counsel 

could have, and should have, reviewed and purged the documents of

any privileged materials: (1) prior to defense counsel’s review

of the bankers’ boxes, (2) after defense counsel tagged the

documents in the boxes that she wanted copied, including the

privileged Duval letter, (3) when he sent the copied documents to

defendants’ counsel as a discovery production, or (4) any other

time before copies of these documents were produced in discovery. 

Plaintiffs’ counsel has not disputed his failure to do so in any

of these instances. His argument is that, in what he believes

was a reasonable precaution, he instructed an associate to review

the bankers’ boxes4 and take out all privileged materials. The

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precaution of assigning an associate to review and pull

privileged material from the four boxes may very well have been

reasonable, but without double checking by the more senior

attorney directly responsible for the case, under the facts and

circumstances present here, it was insufficient.

The plaintiffs further argue that, although defense counsel

tagged the Duval letter with “copy unless privilege claimed,” she

never alerted plaintiffs’ counsel to the note on the sticker, or

“otherwise mentioned that a privileged document was among the

thousands of pages she had been given to review.” These

considerations favor a finding of waiver. The plaintiffs’ lawyer

missed several opportunities to “catch” the inadvertently

disclosed letter, and, in the context of the discovery practice

utilized in this case, defense counsel’s note on the document

flag fully complied with the spirit of Rule 26 

B. Delay in discovering disclosure

This factor also militates a finding of waiver. Defendants’

counsel reviewed the material in the bankers’ boxes on March 7,

2008, but plaintiffs’ counsel didn’t discover that he had

inadvertently disclosed the Duval letter until June 16, 2008,

approximately fourteen weeks later. Although the letter was

filed in court by their opponents as an exhibit to a summary

Case 1:07-cv-00082-JL Document 49 Filed 08/07/08 Page 7 of 10
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judgment motion on May 19, 2008, the plaintiffs did not assert

their privilege for another four weeks. 

C. Scope of production

As mentioned earlier, the plaintiffs made four bankers’

boxes of documents available for review by defendants’ counsel. 

The actual document production, however, was limited to a oneinch high stack of documents that was culled from these boxes. 

As a review of such a limited production would not have been a

time consuming or burdensome undertaking, this factor also cuts

in favor of a finding of waiver. 

D. Extent of inadvertent disclosure

The disclosure appears to be limited to the Duval letter. 

Neither party has suggested otherwise. So any waiver is

similarly limited. 

E. Fairness and justice

On balance, considerations of fairness and justice weigh in

favor of a finding of waiver. Most notably, plaintiffs’ counsel

employed few precautions, if any (other than counsel of record’s

instructions to an associate attorney), to guard against the

disclosure of privileged materials. See In re Sealed Case, 877

Case 1:07-cv-00082-JL Document 49 Filed 08/07/08 Page 8 of 10
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F.2d 976, 980 (D.C. Cir. 1989) (“the confidentiality of

communications covered by the privilege must be jealously guarded

by the holder of the privilege lest it be waived”). Defendants’

counsel’s conduct in this situation--noting the privilege on a

document she flagged for requested production, and then using the

document when adverse counsel nonetheless provided it along with

a “limited waiver”--was both fair and just under the

circumstances. 

Weighed along with the other relevant factors,

considerations of fairness and justice favor a finding of waiver. 

Indeed, the facts of this case militate a waiver finding more

than the facts the First Circuit considered and relied on in

Texaco. 60 F.3d at 883. There, the party responding to a

request for discovery told the party seeking it, “here is a room

full of papers, you can take a look at them.” Id. at 883 n.7. 

When the discovering party asked for copies of certain documents

it had seen, however, the responding party refused to provide

them on the basis of privilege. Id. The district court ruled

that the responding party had waived any such privilege, and the

Court of Appeals agreed. Id. at 883. 

Case 1:07-cv-00082-JL Document 49 Filed 08/07/08 Page 9 of 10
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IV. CONCLUSION

Based on the foregoing considerations, the court determines

that the plaintiffs’ privilege with respect to the Duval letter

has been waived, and the defendants are therefore not required to

withdraw it from their motion for summary judgment. 

 

SO ORDERED.

 

Joseph N. Laplante

United States District Judge

Dated: August 7, 2008

cc: Steven E. Grill, Esq.

Anthony S. Augeri, Esq.

Katherine B. Miller, Esq.

Robert M. Derosier, Esq.

Paul T. Fitzgerald, Esq.

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