In this patent infringement action, the plaintiff’s counsel deposed one of the defendant’s (DJO) Fed.R.Evid. 30(b)(6) witnesses during a deposition that took place remotely. At the remote deposition, counsel questioned the witness regarding a license agreement and a privileged letter that was apparently appended to the license agreement. Plaintiff then contended that any objections to the privileged nature of the letter were waived and that the waiver should be not just to the letter but also to the subject matter of the letter.
To analyze the waiver issue, the district court addressed whether DJO took appropriate steps to claw back the privileged letter. DJO contended that it did promptly take reasonable steps to rectify the error, explaining that, because the deposition was remote and the letter was attached to many other non-privileged documents, DJO’s counsel could not tell from the remote display of the document whether the letter had been intentionally produced. Although Mr. DJO’s counsel did not assert privilege over the letter during the deposition or after the letter was discussed, DJO identified the letter as inadvertently produced and requested the destruction of the letter and related testimony “within hours” of the deposition’s conclusion. Continue reading