In one of the first decisions to interpret a new rule of evidence that governs “inadvertent disclosure” of privileged documents, a federal judge has held that if the “reasonableness” of the accidental disclosure remains in dispute, courts should continue to apply the traditional five-factor test to determine whether the privilege has been waived.
In his opinion in Rhoads Industries Inc. v. Building Materials Corp. of America, PICS No. 08-1949, (E.D. Pa., Nov. 14, 2008) memorandum (21 pages), U.S. District Judge Michael M. Baylson was forced to resolve a dispute that arose when plaintiff’s lawyers accidentally turned over more than 800 privileged e-mails when they provided the defense lawyers with copies of 78,000 e-mails.
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