disclosure where "party's screening effort was manifestly inadequate.")
The other factors relevant to the inadvertent-disclosure analysis also point toward a finding of waiver in this case. Defendants attested to the second factor, the number of inadvertent disclosures, indicating that they had inadvertently disclosed "23 pages" of privileged documents besides the six copies of the Oppikofer document. Lee Supp. Aff. at P 12; Defendant's October 6, 1995 Brief at 4 n.2; Plaintiff's October 6, 1995 Brief at 7, 13.
In a document production of this relatively small size -- only 681 total documents -- the disclosure of "23 pages" of privileged documents, in addition to the 6 copies of the Oppikofer document, constitutes further evidence that counsel's precautions with respect to the protection of privileged documents were manifestly inadequate.
The third factor -- the extent of disclosure-- also weighs in favor of a finding of waiving. The disclosure of the Oppikofer document was complete, as demonstrated by the substantive arguments made by plaintiff in support of its position. The fourth factor -- efforts taken to rectify the error -- further supports a finding of waiver. While defense counsel acted quickly to rectify the inadvertent disclosure of the Oppikofer document upon receiving a copy of plaintiff's September 8, 1995 letter to Judge Parell, its actions were in response to the second, and not the first, inadvertent production. The implementation of proper screening procedures might have prevented the second production of the translations of the Oppikofer document. But, as discussed previously, defendants' screening procedures were virtually non-existent.
The fifth factor is whether the interests of justice would be served by a finding of waiver. According to plaintiff, the Oppikofer document contradicts defendants' motion-to-dismiss claims, and a finding of waiver would serve the interests of justice by preventing defendants from, in effect, hiding the truth. The Court, however, declines to find a waiver on these grounds. "That the documents are relevant and probative does not determine the waiver question." Kansas City Power & Light Co. v. Pittsburg & Midway Coal Mining Co., 133 F.R.D. 171, 174 (D. Kan. 1989). The significance of the Oppikofer to defendants' motion to dismiss is a determination more appropriately left to the resolution of that motion, and has no place in this analysis. The Court, however, finds that the interests of justice would be served by a finding of waiver, where, as here, a party's negligence has resulted in the inadvertent production of a privilege document.
Finally, because the Court finds that defendants waived the attorney-client privilege on other grounds, the Court will not reach plaintiff's arguments based upon the crime-fraud exception. Accordingly, the Court will deny defendants' motion for a Protective Order compelling plaintiffs to return copies of the Oppikofer document. The Court instead holds that defendants, by inadvertently producing the Oppikofer document under circumstances evincing an absence of reasonable precautions to preserve the confidentiality of the document, waived the attorney-client privilege with respect to the document. An appropriate Order shall follow.
This matter having been opened to the Court by Joel Schneider, of Manta and Welge, counsel for defendants Sandoz Ltd., Sandoz Corporation, Sandoz Pharmaceuticals Corporation, and Sandoz Chemicals Corporation, seeking a Protective Order compelling plaintiff, Ciba-Geigy Corporation, to return copies of a privileged document which defendants contend they inadvertently disclosed, and the Court having considered the moving papers, and the opposition thereto, and the Court having entered a Memorandum on this date setting forth the Court's decision in this matter, which is being considered pursuant to Fed. R. Civ. P. 78, and for good cause shown,
IT IS on this 28 day December, 1995,
ORDERED that defendants' motion for a Protective Order compelling plaintiff to return copies of a privileged document is denied.
Freda L. Wolfson
United States Magistrate Judge