Mistakenly Filing Documents under Seal, Rather than In Camera, for Privilege Review Is Not “Inadvertent” and Effects Waiver as to Those Documents but Not Subject Matter Waiver — Rule 502(b) vs. 502(a)

From First Am. CoreLogic, Inc. v. Fiserv, Inc., 2010 U.S. Dist. LEXIS 127454 (E.D. Tex. Dec. 2, 2010):

At the outset, before discussing CoreLogic's inadvertent disclosure argument, the Court briefly notes that if CoreLogic did not inadvertently disclose the documents, then the privilege was waived to those documents. In the present case, Corelogic filed the privileged exhibits and declaration under seal and then served them on all the defendants. If the documents had been filed in camera with the Court then the privilege would not have been waived because the documents would not have been disclosed to any third parties except the Court. But the documents were not filed in camera — they were filed under seal and then served on the defendants. Filing under seal is not the same as filing in camera. Filing under seal protects the documents from view of the public. On the other hand, filing documents in camera protects the documents from view of the public and also other parties in the case — only the Court can view the documents. Therefore, filing the documents under seal and serving them on the defendants has the same effect as disclosing documents to a third party and thus waiving the privilege. Hence, CoreLogic's only chance in retaining the privilege with respect to those documents is to succeed in its argument that the documents were inadvertently filed under seal instead of in camera.

Regarding CoreLogic's inadvertent disclosure argument, *** Federal Rule of Evidence 502(b) outlines the federal rule for inadvertent disclosure of privileged information.***

In this Court's view, the unique facts of the present case are not what Congress or the Advisory Committee had in mind when drafting Rule 502(b). Rule 502(b) and the previous five factor test outlined above were designed primarily to cope with the increasingly common problem in massive discovery where thousands or millions of documents are produced and a few privileged documents are "inadvertently" disclosed along with the millions of other documents. This case, however, does not involve the inadvertent disclosure of documents along with millions of other documents. Instead, Corelogic filed the privileged exhibits and declaration under seal and then served them on all the defendants. Hence, Defendant LPS, in essence, argues that CoreLogic advertently disclosed the documents to the defendants and thus waived its privilege.***

Keeping the text of Rule 502(b) in mind, CoreLogic has not met its burden of proof in showing that the disclosure of the seven documents was inadvertent. CoreLogic only provides an affidavit by one of its attorneys stating that the documents were inadvertently filed under seal and were intended to be lodged with the court for in camera review only. Thus, CoreLogic's reasoning is that because the documents were inadvertently filed under seal then they were inadvertently disclosed. On the other hand, there is no indication in CoreLogic's original motion for protective order, which attached the privileged documents, that those documents were intended to be reviewed in camera. The motion never states the words "in camera " at any point and the motion does not include any language indicating that the documents were to be viewed by the Court's eyes only. Therefore, CoreLogic has not satisfied its burden of proof with only an affidavit by one of its own attorney's stating that it meant to file in camera — especially given that the affidavit was only filed several weeks after Defendant LPS filed a pleading indicating that CoreLogic had waived its privilege. Under the facts of this case, the Court is not willing to set a precedent allowing an exhibit to be considered as filed in camera when the party first filed the exhibit under seal (and served the other parties with the documents), and then later merely filed an affidavit claiming the exhibit was supposed to be in camera.

Although the Court holds that the privilege for the seven documents has been waived by CoreLogic's disclosure, the Court does not hold that CoreLogic's disclosure creates a subject-matter waiver. Federal Rule of Evidence 502(a) governs subject-matter waiver in a Federal proceeding and it states that if the attorney-client privilege or work product protection has been waived regarding a communication "the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if: (1) the waiver is intentional . . . ." In the present case, CoreLogic has met its burden of proof that its waiver of the privilege was not intentional. CoreLogic may have advertently disclosed documents that consequently waived its privilege, but CoreLogic was not intending to waive its privilege. As CoreLogic states in its affidavit, CoreLogic mistakenly filed its documents under seal and should have filed them in camera in order to maintain its privilege. CoreLogic's motion for protective order even states that the privileged exhibits attached to the order "are intended to remain confidential and privileged." (Dkt. No. 75, at 11.) This supports the Court's finding: although CoreLogic may have accidently waived its privilege regarding documents that were advertently attached under seal and disclosed to third parties, CoreLogic did not intend to waive its privilege. Thus, the Court holds there is not a subject-matter waiver, and the attorney-client privilege and/or work product protection are only waived for the seven documents attached under seal to CoreLogic's motion for protective order.

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