In Rhoades v. YWCA of Greater Pittsburgh, 2009 WL 3319820 (W.D. Pa. Oct. 14, 2009), District Court Judge Donetta Ambrose ruled that under Federal Rule of Evidence 502 defendant was entitled to the return of an inadvertently produced document attached as an exhibit to plaintiff's amended complaint.

Plaintiff filed her pro se complaint alleging wrongful termination, retaliation and violation of the Equal Pay Act.  Plaintiff filed a motion for leave to file a second amended complaint which added language quoted from a document obtained during discovery which plaintiff attached to the amended complaint.  Defendants moved to compel the return of four pages of the document they claimed were privileged and inadvertently produced. 

The court analyzed the inadvertent production under Federal Rule of Evidence 502(b) and found the documents at issue were privileged and the disclosure was inadvertent.  The document was created by the YWCA's human resources director at the direction of counsel for use in defending the litigation and were produced after an administrative error caused the four pages to be placed with plaintiff's personnel file for labeling and production.  Out of more than 1600 pages produced to plaintiff, only four pages were inadvertently produced privileged documents.  Defendants requested the documents back 5 days later.  Thus, the court found the requirements of FRE 502 were met and that a waiver did not occur.