Defendants filed a motion to compel Adaptix to re-produce documents that Adaptix had clawed back on the grounds of privilege. Adaptix had early produced the documents in several productions. The Defendants argued in the motion that even if Adaptix could demonstrate the documents are privileged, Adaptix waived the privilege because Defendants had notified Adaptix that they were relying on the documents at least nine months before Adaptix sent its clawback letter. Defendants pointed out that they had relied on information disclosed in the documents in depositions, expert reports, and briefing, all without any objection from Adaptix.
In response, Adaptix asserted that its data vendor erroneously produced the documents to Defendants without Adaptix knowledge even though they had been properly tagged as privileged. Adaptix also asserted that the documents fell within the protections of the attorney client work product doctrine because they pertained to testing that was performed for purposes of litigation at the direction of Adaptix’s attorneys. Adaptix then argued that it was only in March of 2015 that it “eventually realized the error of Defendants’ access to the documents at issue and promptly sent a letter clawing them back.”
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