In Silverstein v. Federal Bureau of Prisons, 2009 WL 4949959 (D. Colo. Dec. 14, 2009), Magistrate Judge Kathleen Tafoya granted plaintiff's motion to compel deposition testimony regarding a privileged document holding defendants waited too long to object and seek the return of the document.

In the fall of 2008 defendants produced a privilege log which included an October 2004 memorandum created by the "Office of General Counsel" and designated as an attorney-client communication (the "October Memorandum").  The document was subsequently produced to plaintiff.  Once defendants realized the error, they notified plaintiff's counsel, but did not seek its return nor did defendants re-assert any privileges related to the document.

Plaintiff served a Rule 30(b)(6) notice of deposition requesting testimony from a deponent about the creation, drafting, and use of the October Memorandum.  In response, Defendants designated an in-house lawyer as the deponent, and still did not assert any privileges related to the document. Discovery was stayed for nearly a year.  When discovery re-commenced, defendants objected to the taking of the deposition on privilege grounds and sought the return of the October Memorandum.

The court rejected defendants' privilege assertion ruling defendants waited over a year to assert the privilege and seek the return of the document.  The court held that while Federal Rule of Evidence 502(b) protects a party from the unintended disclosure of privileged material, defendants could not avail themselves of such protection.  The court distinguished between the words "unintended" and "mistaken", holding document was not "inadvertently" produced within the meaning of FRE 502(b).   Thus, the court ruled that defendants had waived the attorney-client privilege in the documents. The court then turned to FRE 502(a) holding the waiver and disclosure should apply to all communications related to the same subject matter.