In Amobi, et. al. v. District of Columbia Dep't of Corrections, et. al., 2009 U.S. Dist. Lexis 114270 (D.D.C. December 8, 2009), Magistrate Judge John Facciola, citing Federal Rule of Evidence 502, ruled that defendants waived the work-product protection in a memorandum prepared by counsel due to their inability to sufficiently articulate any reasonable steps they took to prevent the disclosure of the documents.

Plaintiff and his wife sought retribution for injuries suffered as a result of defendants' removal of plaintiff from his job as a corrections officer after he was involved in an altercation with an inmate.   In discovery, defendants produced a memorandum prepared by an attorney advisor on the eve of an arbitration proceeding between the parties.  After realizing their error, defendants' counsel sent a letter to plaintiff asking for the return or destruction of the confidential document.  Plaintiffs sequestered the document, but refused to destroy it.  Plaintiffs then noticed the attorney advisor for depositions.  Defendants argue that the deposition subpoena should be quashed because plaintiff seeks information protected by the attorney-client privilege and further sought a court order for the immediate return of the memorandum.

Plaintiffs countered that the memorandum was not privileged and that if it were, defendants waived the privilege.  The court denied the motion to quash, but limited the scope of the advisor's testimony related to her knowledge that she was submitting documents into evidence that stated that the inmate plaintiff was accused of harming had been interviewed when the advisors knew that, in fact, he had not.  The court also ordered the deposition take place in his Jury Room on a day that he would be available to rule on any objections.  The court further ruled that the work-product privilege in the document had been waived as defendants failed to put forth any evidence to demonstrate their reasonable efforts to protect the privilege. 

"Instead, the court is told in the passive voice that ‘several reviews of the documents to be disclosed were undertaken, [and] this document was inadvertently produced.' Hence, the efforts taken are not even described, and there is no indication of what specific efforts were taken to prevent disclosure, let alone any explanation of why these efforts were, all things considered, reasonable in the context of the demands made upon the defendants."  Judge Facciola refused to speculate as to what specific precautions were taken by counsel to prevent disclosure and ruled that defendants failed to meet their burden.