The opinion of the court was delivered by: Irenas, Senior District Judge
Presently before the Court is Defendant Air Line Pilots Association, International's ("ALPA") Motion to Compel the Production of Documents (Docket No. 220) pursuant to Fed. R. Civ. P. 37, and the Cross-Motion for a Protective Order of Plaintiffs, former pilots of Trans World Airlines, (Docket No. 223) pursuant to Fed. R. Civ. P. 26(c) and 37(a)(4)(B). For the reasons set forth below, we will grant in part and deny in part ALPA's motion and deny Plaintiffs' cross-motion.
As the underlying facts to this litigation are detailed at Bensel v. Allied Pilots Ass'n, 387 F.3d 298, 301-04 (3d Cir. 2004) and Bensel v. Allied Pilots Ass'n, 271 F. Supp. 2d 616, 620-22 (D.N.J. 2003), the Court will only recite those facts pertinent to the present motions. In the motions presently before the Court, ALPA seeks to compel the production of twenty-five documents (the "Subject Documents") produced by prior class counsel, Cureton Caplan, P.C. ("Cureton Caplan"), which were later determined to be protected by the attorney-client privilege by current class counsel, Trujillo Rodriguez & Richards, LLC ("Trujillo Rodriguez").*fn1 ALPA also seeks to compel any additional documents related to the same subject matter as the Subject Documents on the basis of waiver. In their cross-motion, Plaintiffs seek a protective order requiring ALPA to return the Subject Documents to Plaintiffs.
The Subject Documents consist of twenty-three pieces of correspondence between class representative Leroy "Bud" Bensel and the law firm of Boies, Schiller & Flexner LLP (the "Boies Firm"),*fn2 who was retained by Bensel and his organization, the Aviation Workers Rights Foundation ("AWRF"), to file objections to the single-carrier proceedings in front of the National Mediation Board in late 2001 and early 2002.*fn3 (Pls' Br. at 7; Bensel Decl.*fn4 ¶ 3). The remaining two Subject Documents are communications between Plaintiffs and their former class counsel, Cureton Caplan.*fn5 (Pls' Br. at 5).
Plaintiffs, through Cureton Caplan, first produced the Subject Documents in April 2005 as part of their initial disclosures pursuant to Fed. R. Civ. P. 26 in a production of approximately 6,000 pages. (Def's Br. at 2; Def's Opp. Br. at 6; Pls' Br. at 5). At the time of the production, Alexandra Strembler, a contract attorney for Cureton Caplan, informed counsel for ALPA that Plaintiffs were not producing any privileged documents. (Katz Decl. ¶ 2).
By order dated May 16, 2006, Cureton Caplan was allowed to withdraw as class counsel, and current class counsel, Trujillo Rodriguez, was appointed. Later, during the deposition of class representative Howard Hollander on September 19, 2006, ALPA sought Hollander's testimony regarding a Subject Document. (Katz Decl. ¶ 3). It was at this time that Plaintiffs first asserted the attorney-client privilege over the Subject Document and requested that ALPA return the Subject Document. (Id.) Plaintiffs later identified all of the Subject Documents on a privilege log submitted to ALPA dated November 6, 2006, and since that time, the parties have attempted to resolve the issue on their own and in status conferences with Magistrate Judge Donio. (Id. ¶ 1; Def's Declaration Attesting to Compliance with L. Civ. R. 37.1(b)(1) ¶ 3).
As stated in affidavits submitted by Bensel and representatives from Cureton Caplan, Jerald Cureton and Alexandra Strembler, Plaintiffs assert that they did not intentionally waive the attorney-client privilege with respect to the Subject Documents. (Cureton Decl. ¶¶ 4-6, 8-10; Strembler Decl. ¶¶ 5-8; Bensel Decl. ¶¶ 5-8). Instead, the documents were disclosed inadvertently. (Strembler Decl. ¶ 4).
The attorney-client may be waived where a client "voluntarily discloses privileged information to a person outside the attorney-client relationship." Jame Fine Chems., Inc. v. HiTech Pharmacal Co., 2006 U.S. Dist. LEXIS 58235, at *6 (D.N.J. Aug. 16, 2006). However, an inadvertent disclosure of a privileged document "does not necessarily constitute waiver of the attorney-client privilege." Id. Although the Third Circuit has not specifically addressed the issue of waiver by inadvertent disclosure of privileged documents, courts in this Circuit have generally followed the approach that "[w]hile an inadvertent disclosure is, by definition, an unintentional act, if such a disclosure results from gross negligence, . . . the disclosure [will be deemed] to be intentional, thus constituting a waiver of the privilege." Ciba-Geigy Corp. v. Sandoz Ltd., 916 F. Supp. 404, 411 (D.N.J. 1995). The following five factors are considered when determining whether the privilege has been waived:
"(1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving the party of its error."
Id. (quoting Advanced Med., Inc. v. Arden Med. Sys., Inc., 1988 U.S. Dist. LEXIS 7297, at *6 (E.D. Pa. July 18, 1988)). "A party or person seeking to obtain a protective order on the basis of an asserted privilege bears the burden of establishing the applicability of a privilege to the information sought." Harding v. Dana Transport, Inc., 914 F. Supp. 1084, 1089-90 (D.N.J. 1996).
Based on the affidavits submitted by Plaintiffs and the lack of any evidence indicating that privileged documents were intentionally produced, we find that Plaintiffs' initial disclosure of the Subject Documents was inadvertent, and not as part of a purposeful production of communications between the Boies Firm and Plaintiffs. We must therefore determine whether the inadvertent disclosure of such documents waived the attorney-client privilege.
With respect to the reasonableness of the precautions taken to prevent the disclosure, Plaintiffs have failed to provide any facts regarding the initial review of the Subject Documents and steps taken to avoid the disclosure of privileged documents during the production by former class counsel, Cureton Caplan.*fn6 Instead, Plaintiffs assert that the fact that such documents were privileged would not have been apparent on the face of the fax cover pages. Although this begs the question of whether these documents were in fact reviewed by prior counsel prior to disclosure, a review of the documents shows that a number of the documents contained the full name of the Boies Firm. The documents from Cureton Caplan were even attached to a fax cover page containing the firm's letterhead. While recognizing that a number of the Subject Documents only had the name of the Boies Firm attorney as the recipient on the fax cover page, it was still incumbent on Plaintiffs' ...