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).

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