Extract from Doug Austin’s article “Completely Reckless Handling of Documents Waives Privilege, Court Rules”
In Sure Fit Home Prods., LLC v. Maytex Mills Inc., No. 21 Civ. 2169 (LGS) (GWG) (S.D.N.Y. May 20, 2022), New York Magistrate Judge Gabriel W. Gorenstein, finding “completely reckless” handling by plaintiffs of exhibits deemed as privileged, found that “plaintiffs waived any claim to privilege over these documents”, despite a protective order by the parties that allowed either side to “claw back” documents produced inadvertently.
This patent infringement case related to a shower curtain design. “[I]n mid-2021”, the plaintiffs produced Exhibits 88, 89, and 90 to the defendants. On March 11, 2022, the defendants served plaintiffs with their First Set of Requests for Admissions, which included requests to confirm the authenticity of Exhibits 88, 89, and 90. On April 11, 2022, the plaintiffs responded to the requests for admissions, asserting privilege only over Exhibit 89. Subsequently, during an April 25, 2022 meet and confer, the plaintiffs asserted, for the first time, that all three exhibits were protected, and sought to claw back the documents.
However, the plaintiffs had also used the documents in a prior matter (the “Kartri matter”), where the Kartri defendants used the three documents as a combined exhibit to a reply brief in support of their motion for summary judgment. The plaintiffs never objected to the use of the documents. Later, the defendants in the Kartri matter designated the documents comprising Exhibits 88, 89, and 90 as a trial exhibit. Although plaintiffs raised seven separate objections to the admission of the documents, plaintiffs asserted neither attorney-client privilege nor work product protection. While the plaintiffs asserted that the exhibits were “withdrawn” on April 25, 2022, Judge Gorenstein noted “nothing in the Kartri record reflects any such application to the judge in Kartri on that date.”