Monday, February 23, 2009

Failure to Monitor Opposing Counsel's Inspection of Documents Results in Waiver of Privilege

Plaintiff waived any privilege regarding documents flagged by defense counsel during an inspection of documents at plaintiff's corporate offices. Although plaintiff claimed that "defense counsel ignored express instructions and improperly inspected . . . documents which were located in a cabinet which had not been made available for inspection," but which was located in a room to which defense counsel was granted access, the court determined that plaintiff failed to exercise "reasonable precautions to prevent inadvertent disclosure," and failed to object until after the documents had been copied by a third party vendor.

SubAir Systems LLC v. Precision Small Engine Co., 1-06-cv-02620 (SCD February 19, 2009, Order)

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