Yates v. West Contra Costa Unified School District
Filing
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ORDER re 96 Letter filed by West Contra Costa Unified School District. Signed by Judge Maria-Elena James on 3/9/2017. (mejlc3, COURT STAFF) (Filed on 3/9/2017) (Additional attachment(s) added on 3/9/2017: # 1 Certificate/Proof of Service) (rmm2S, COURT STAFF).
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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FERNANDO YATES,
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Plaintiff,
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v.
Case No. 16-cv-01077-MEJ
ORDER RE: DISCOVERY DISPUTE
Re: Dkt. No. 96
WEST CONTRA COSTA UNIFIED
SCHOOL DISTRICT,
United States District Court
Northern District of California
Defendant.
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Defendant West Contra Costa Unified School District produced to Plaintiff Fernando
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Yates an email written by Defendant’s former counsel, Mary Keany. See Letter, Dkt. No. 96. On
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December 30, 2016, Plaintiff attached that email as an exhibit to a motion to compel, circling,
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underlining, and starring the portion written by Ms. Keany. See Mot., Ex. G, Dkt. No. 57. On
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February 3, 2017, Defendant informed Plaintiff of the inadvertent disclosure and requested he
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destroy or return all copies of the privileged email. See Letter at 2. Plaintiff refused to do so,
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arguing any privilege had been waived: “Plaintiff had access to that letter for several months
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before defendant counsel giving notice, and included in a pleading December 30, 2016, and
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Defendant’s counsel failed to object at that time.” Id. He also argues privilege is waived under
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the crime/fraud exception. Id.
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Federal Rule of Evidence 502(b) provides that disclosure of a protected communication
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does not waive the attorney-client privilege or work product protection where “(1) the disclosure is
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inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent
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disclosure; and (3) the holder promptly took reasonable steps to rectify the error[.]” Defendant has
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not satisfied its burden of showing it meets any of these requirements. The only information
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Defendant provides about the email is that it “was inadvertently produced among the 375
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documents produced to Plaintiff to date.” See Letter at 1. Defendant does not provide any details
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from the attorney or entity that produced the email to support its contention the email was
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inadvertently produced, and how it came to be produced. Defendant does not describe what steps
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it took to prevent the disclosure, nor explain how a privileged document was overlooked in a
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production of this manageable size. Defendant also cannot show it “promptly took steps to rectify
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the error” when it did not inform Plaintiff of the disclosure immediately after he attached the
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privileged communication to his December 30, 2016 filing. Instead of “promptly” informing
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Plaintiff of the inadvertent disclosure and requesting he return or destroy all copies of the
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communication, Defendant waited over one month to ask Plaintiff to do so. Finally, Defendant
waited an additional month before bringing the dispute to this Court’s attention. Defendant
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United States District Court
Northern District of California
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provides no explanation for the delay in requesting Plaintiff return the inadvertently produced
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email, nor for the additional delay in seeking redress from the Court.
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Under these circumstances, the Court finds Defendant waived the attorney-client privilege
and work product protection for Ms. Keany’s email.
IT IS SO ORDERED.
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Dated: March 9, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge
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