Yates v. West Contra Costa Unified School District

Filing 97

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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FERNANDO YATES, 8 Plaintiff, 9 10 11 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. 12 13 Defendant West Contra Costa Unified School District produced to Plaintiff Fernando 14 Yates an email written by Defendant’s former counsel, Mary Keany. See Letter, Dkt. No. 96. On 15 December 30, 2016, Plaintiff attached that email as an exhibit to a motion to compel, circling, 16 underlining, and starring the portion written by Ms. Keany. See Mot., Ex. G, Dkt. No. 57. On 17 February 3, 2017, Defendant informed Plaintiff of the inadvertent disclosure and requested he 18 destroy or return all copies of the privileged email. See Letter at 2. Plaintiff refused to do so, 19 arguing any privilege had been waived: “Plaintiff had access to that letter for several months 20 before defendant counsel giving notice, and included in a pleading December 30, 2016, and 21 Defendant’s counsel failed to object at that time.” Id. He also argues privilege is waived under 22 the crime/fraud exception. Id. 23 Federal Rule of Evidence 502(b) provides that disclosure of a protected communication 24 does not waive the attorney-client privilege or work product protection where “(1) the disclosure is 25 inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent 26 disclosure; and (3) the holder promptly took reasonable steps to rectify the error[.]” Defendant has 27 not satisfied its burden of showing it meets any of these requirements. The only information 28 Defendant provides about the email is that it “was inadvertently produced among the 375 1 documents produced to Plaintiff to date.” See Letter at 1. Defendant does not provide any details 2 from the attorney or entity that produced the email to support its contention the email was 3 inadvertently produced, and how it came to be produced. Defendant does not describe what steps 4 it took to prevent the disclosure, nor explain how a privileged document was overlooked in a 5 production of this manageable size. Defendant also cannot show it “promptly took steps to rectify 6 the error” when it did not inform Plaintiff of the disclosure immediately after he attached the 7 privileged communication to his December 30, 2016 filing. Instead of “promptly” informing 8 Plaintiff of the inadvertent disclosure and requesting he return or destroy all copies of the 9 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 11 United States District Court Northern District of California 10 provides no explanation for the delay in requesting Plaintiff return the inadvertently produced 12 email, nor for the additional delay in seeking redress from the Court. 13 14 15 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. 16 17 18 19 Dated: March 9, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 20 21 22 23 24 25 26 27 28 2

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