An Illinois litigant avoided catastrophe last month when a federal Magistrate Judge allowed him to “claw back” privileged documents that his document services contractor accidentally included in his discovery response. In Heriot v. Byrne,

08 C 2272 (March 20, 2009, U.S.D.C. N.D. IL ), the Court invoked all three savings clauses of Federal Rule of Evidence (“FRE”) 502, finding: 

“(1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).”

FED.R.EVID. 502(b)(1)-(3). Application of the three clauses permitted plaintiff to recover from the mistaken transmission of documents containing personal information in this copyright infringement case.

            The memorandum opinion notes that “the broader the scope of the discovery, the more extensive a party’s disclosure of confidential materials may be without waiving the privilege, and vice versa.” In other words, the fewer the documents produced, the more carefully attorneys must guard against an “incestuous intermingling of privileged and unprivileged documents.” (Ft. 21)