301 F. Supp. 3d 917
N.D. Ill.2018Background
- Medical Mutual of Ohio (MMO) produced ~180,000 documents in MDL discovery under a court-entered protective order containing claw-back and Rule 502(d) non-waiver language.
- MMO later identified six documents (email chains A–F) it says were inadvertently produced and notified defendants and MDL co-lead counsel to claw them back under the protective order.
- The six documents include communications between in-house counsel and non‑attorney employees and inter-employee emails that the court found reflect counsel’s legal thinking.
- Defendants contested privilege and argued MMO waived any privilege by (a) failing to prevent the disclosures, (b) not promptly rectifying them, and (c) by allowing one document (Exhibit E) to be used in a deposition without timely objection.
- The court reviewed (1) whether the emails are privileged, (2) whether the parties’ Rule 502(d) protective order governs waiver (vs. Rule 502(b)), (3) whether the productions were inadvertent, and (4) whether MMO complied with the claw‑back procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the six documents protected by attorney‑client privilege? | Documents reflect in‑house counsel legal inquiries and legal thinking; privilege applies. | Documents are non‑privileged business communications or mere factual exchanges. | Privileged: all six emails protected because they reveal counsel’s legal thinking and were part of a legal investigation. |
| Does the parties’ protective order (Rule 502(d) order) govern waiver, or does Fed. R. Evid. 502(b) apply? | The protective order is a court‑entered Rule 502(d) order that displaces Rule 502(b). | The order is too generic; courts should apply 502(b) to fill gaps and assess waiver. | Protective order governs; Rule 502(b) does not apply because the order expressly adopts Rule 502(d) non‑waiver language. |
| Were the disclosures "inadvertent" and did MMO comply with the claw‑back timing? | Disclosures were unintentional; each document was clawed back within 20 business days of its discovery per the order. | MMO’s broader production history and delay (e.g., E used at deposition; claw‑back days later) show not inadvertent or untimely. | Inadvertent: court credits MMO’s declaration; MMO complied with the protective order’s timing for each document. |
| Did MMO waive privilege by allowing Exhibit E to be used at deposition without immediate objection? | Protective order’s claw‑back controls; allowing use subject to reservation and later claw‑back does not waive. | Failure to object and allowing testimony about Exhibit E waived privilege for E (and by extension F). | No waiver: court follows pre‑Rule 502 precedent and the parties’ Rule 502(d) order — post‑production use at deposition did not defeat the claw‑back. |
Key Cases Cited
- United States v. Leonard-Allen, 739 F.3d 948 (7th Cir.) (privilege protects communications reflecting lawyer's thinking and legal advice)
- Fisher v. United States, 425 U.S. 391 (U.S.) (purpose of attorney‑client privilege is to encourage full disclosure to counsel)
- Sandra T.E. v. South Berwyn Sch. Dist. 100, 600 F.3d 612 (7th Cir.) (investigations by attorneys, including in‑house counsel, fall within privilege)
- In re Sulfuric Acid Antitrust Litig., 235 F.R.D. 407 (N.D. Ill.) (protective orders with claw‑back provisions can foreclose inadvertent‑production waiver analyses)
- United States v. Evans, 113 F.3d 1457 (7th Cir.) (burden on party invoking privilege to prove its elements)