The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge
This matter is before the Court on plaintiff's "Motion to Compel the Return of Inadvertently Produced Documents Pursuant to Fed. R. Civ. P. 26(b)(5)(B)." [Doc. No. 54]. The issue to be addressed is whether plaintiff waived any privilege or discovery protection applicable to documents that were inadvertently produced. The Court has received defendants' opposition [Doc. No. 55], the documents in question for review in camera (see defendants' July 1, 2009 letter with attachments), and defendants' supplemental letter brief (see defendant's July 6, 2009 letter). The Court also conducted oral argument. For the reasons to be discussed, plaintiff's motion is GRANTED in part and DENIED in part.
By way of brief background, plaintiff alleges he was wrongfully imprisoned for over eighteen (18) years based on a false conviction for murder and rape. See First Amended Complaint at ¶1, Doc. No. 2. The essence of plaintiff's claim is that his conviction was based on the defendants' wrongful conduct. With the assistance of the Innocence Project the charges against plaintiff were dropped in May 2006, after DNA sample results indicated that the samples from the crime scene evidence did not match plaintiff's DNA profile.
Plaintiff filed his motion after he discovered that he inadvertently produced allegedly privileged and irrelevant documents. Plaintiff argues the documents are protected by the attorney client privilege and work product doctrine. Plaintiff also claims two documents are protected by the cleric penitent privilege. Plaintiff argues the documents should be returned because he took reasonable steps to prevent the inadvertent disclosure. Plaintiff alleges he was under time constraints to produce documents and his inadvertent production was only a small percentage of the total number of produced documents.*fn1
Defendants argue that a weighing of the factors in Ciba-Geigy Corp. v. Sandoz Ltd., 916 F. Supp. 404, 411 (D.N.J. 1996), compels the conclusion that plaintiff's motion be denied. Defendants argue plaintiff cannot establish that he took reasonable steps to prevent the inadvertent disclosure. Defendants also argue the number and extent of plaintiff's disclosures support a finding of waiver. In addition, defendants argue plaintiff delayed seeking to rectify his disclosure and that the interests of justice are not served by relieving plaintiff of his error. Defendants also argue that plaintiff has not established that the documents in question are privileged.
Although not cited by the parties, plaintiff's motion is controlled by Fed. R. Evid. 502(b). This Rule was recently amended and reads:
Rule 502. Attorney client Privilege and Work Product; Limitations on waiver
(b) Inadvertent disclosure.--When made in a Federal proceeding or to a Federal Office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule ...