LifeBio, Inc. v. Eva Garland Consulting, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LIFEBIO, INC.,

Plaintiff,

Civil Action 2:21-cv-722

v. Judge Edmund A. Sargus

Magistrate Judge Kimberly A. Jolson

EVA GARLAND CONSULTING, LLC,

Defendant.

OPINION AND ORDER

This matter is before the Court regarding a discovery dispute. Plaintiff asks the Court to

strike an email produced in discovery from the exhibits filed in support of Defendant’s Motion for

Summary Judgment (Docs. 71, 86) and in response to Plaintiff’s Motion for Summary Judgment

(Doc. 81). (Doc. 94). For the following reasons, Plaintiff’s request is DENIED.

I. BACKGROUND

Plaintiff filed this lawsuit in state court on January 12, 2021, alleging breach of contract

and breach of good faith and fair dealing. (Doc. 1-1). Defendant removed the action to this Court

on February 19, 2021, based upon its diversity jurisdiction. (See Doc. 1). At the heart of the

current discovery dispute is the parties’ Stipulated Protective Order from May 4, 2021, concerning

the limitations and restrictions for documents produced during the course of the litigation. (Doc.

13). Relevant here, the Stipulated Protective Order sets forth a procedure for remedying

production of privileged material, known as a clawback agreement. (Id. at 7–9). Neither party

disputes the clawback agreement’s contents or validity.

Discovery proceeded with the Stipulated Protective Order in effect. And, on February 24,

2022, Plaintiff produced “voluminous” materials to Defendant. (Doc. 94 at 2). Shortly thereafter,

on March 16, 2022, Defendant’s counsel notified Plaintiff’s counsel via email of her belief that

privileged material had been produced. (Doc. 93-1 at 2). Plaintiff’s counsel did not respond, and

Defendant’s counsel sent another email eight days later, on March 24, 2022, asking for Plaintiff’s

input on whether the material was privileged. (Id. at 3). A paralegal working with Plaintiff’s

counsel responded the next day, writing that counsel would “get back with [Defendant’s counsel]

soon” regarding “the protective-order.” (Id. at 5). After three days of silence, Defendant’s counsel

again emailed Plaintiff’s counsel, asking that Plaintiff “please let [Defendant’s counsel] know [its]

position with regard to [its] recent document production that appears to contain potentially

privileged information.” (Id. at 8). Still, no answer. So Defendant’s counsel tried again on March

31, 2022. (Id. at 11).

Once again, Plaintiff did not respond. Five days later, on April 5, 2022, Defendant’s

counsel was even more direct:

I have not heard back from you with regard to LifeBio’s recent document

production that may contain potentially privileged information. If I do not hear back

from you before the depositions of LifeBio’s representatives, I will presume these

documents are not privileged.

(Id. at 13).

Finally, on April 8, 2022, a paralegal for Plaintiff’s counsel responded, saying that counsel

was “going through the documents” and would “be in touch.” (Doc. 93-1 at 19). Then, on April

11, 2022, Plaintiff’s counsel provided Defendant’s counsel with file names that he asserted

contained privileged communications. (Id. at 18). On April 13, 2022, Defendant asked that the

parties confer to discuss “the potentially privileged materials that you produced, as these materials

are now discoverable and privilege has been waived in light of your refusal and/or failure to timely

respond to our inquiries regarding same in accordance with the [stipulated protective order].” (Id.

at 17). Plaintiff’s counsel did not respond to the request for conferral.

Defendant’s counsel proceeded to use the at-issue email during the deposition of Jeff

Sanders on May 5, 2022—fifty days after Plaintiff first learned it had produced privileged

documents. Defendant’s counsel read the email into the record at the deposition, asking Mr.

Sanders if the email “speaks for itself.” (Doc. 71 at 72, 101). Plaintiff’s counsel responded, saying

We’ll stipulate for the record that this is an email that was sent from Beth Sanders

to Josh Borean and it speaks for itself. And everything in that email, it says what it

says. We’ll stipulate to that. If you need Jeff’s confirmation on that, Susan, after

we’ve stipulated to what’s on the page here --

(Id.). Defendant’s counsel followed with two more questions, at which time Plaintiff’s counsel

said, “[f]or the record, I want to object to this exhibit. This appears to be attorney/client privileged

information that may have been accidentally turned over.” (Id.). Defendant’s counsel informed

Plaintiff’s counsel that “[f]or the record, one, the exhibit now has been stipulated to. Number two,

if it has, it was – that privilege has been waived.” (Id.). And Plaintiff’s counsel subsequently

responded, “Okay. All right.” (Id.). Defendant’s counsel again used the at-issue email in

deposing Lisbeth Sanders on July 22, 2022—128 days after Defendant first informed Plaintiff of

the privilege issue. (Doc. 71 at 2). Plaintiff’s counsel objected to the document “and any testimony

associated with this document. But for purposes of moving this forward, you can ask her – I’m

going to permit at this point in time some questions on this document.” (Id. at 20). Questioning

about the email proceeded.

Many months passed. Then Defendant used the email in its brief in support of its Motion

for Summary Judgment (Doc. 64) and included the email as an exhibit to the Motion for Summary

Judgment (see Doc. 71). Both filed on January 19, 2023—309 days after Plaintiff received notice

of the privilege issue. Plaintiff filed its own Motion for Summary Judgment on the same day (Doc.

67) and responded to Defendant’s Motion on February 9, 2023 (Doc. 82). But Plaintiff did not

raise any objection to Defendant’s use of the at-issue email in its Motion for Summary Judgment

with the Court. So, Defendant used the at-issue email in its response to Plaintiff’s Motion for

Summary Judgment. (Doc. 81 at 4). And again, Plaintiff did not raise a privilege concern with

the Court. Instead, it replied to Defendant’s Response in Opposition on February 23, 2023 (Doc.

87). Finally, on March 10, 2023, Plaintiff’s counsel emailed chambers, asking for a discovery

conference to address production of privileged communications—despite Defendant having used

the privileged material (1) approximately ten months prior in its deposition of Jeff Sanders (see

Doc. 71 at 72), (2) approximately eight months prior in its deposition of Lisbeth Sanders (see id.

at 2), and (3) fifty days prior in its Motion for Summary Judgment filing (see Doc. 64).

Upon notice of the instant discovery dispute, the Court held a telephonic status conference

on March 14, 2023, during which it ordered the parties to file letter briefing on the issue. The

parties complied (Docs. 93, 94), and the dispute is ripe for resolution.

II. DISCUSSION

Naturally, the Court begins with a discussion of attorney-client privilege. As a threshold

matter, the Court must confirm that the email at issue is privileged. See Great-W. Life & Annuity

Ins. Co. v. Am. Econ. Ins. Co., No. 2:11-CV-02082-APG, 2013 WL 5332410, at *7 (D. Nev. Sept.

23, 2013); see also Multiquip, Inc. v. Water Mgmt. Sys. LLC, 2009 WL 4261214, at *3 (D. Idaho

Nov. 23, 2009) (“[W]hen deciding whether inadvertently-produced documents waives any

privilege, a two-step analysis must be done. First, it must be determined if the material in question

is actually privileged[.]”). Ohio law governs the applicability of the attorney-client privilege

because this case is before this Court pursuant to its diversity jurisdiction. See Inhalation Plastics,

Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 3731483, at *1 (S.D. Ohio

Aug. 28, 2012) (citing Fed. R. Evid. 501).

Under Ohio law, the attorney-client privilege “protects against any dissemination of

information obtained in the confidential relationship.” MA Equip. Leasing I, L.L.C. v. Tilton,

2012-Ohio-4668, ¶ 19, 980 N.E.2d 1072, 1079 (Ohio Ct. App. 2012) (internal quotations omitted).

Neither party disputes that the documents at issue contain privileged material. (See Docs. 93, 94).

And the Court agrees.

But the parties hotly contest whether attorney-client privilege has been waived. Attorney-

client privilege is not absolute, and “if a client wishes to preserve the privilege, it must treat the

confidentiality of attorney-client communications like jewels—if not crown jewels.” In re Sealed

Case, 877 F.2d 976, 980 (D.C. Cir. 1989). In other words, it may be waived by “behavior by the

client or [] [its] attorney [] that is inconsistent with the continued maintenance of that privilege.”

Trustees of Elec. Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc., 266

F.R.D. 1, 11 (D.D.C. 2010). Federal law governs this question. See Burnett v. Ford Motor Co.,

No. 3:13-CV-14207, 2015 WL 1650439, at *6 (S.D. W.Va. Apr. 14, 2015) (“While the

applicability of the privilege is governed by state law, waiver of the privilege is a matter of federal

law.”); Fed. R. Evid. 502(f). More specifically, Rule 502 of the Federal Rule of Evidence guides

the analysis. See Blankenship v. Superior Controls, Inc., No. 13-12386, 2014 WL 12659921, at

*2 (E.D. Mich. Nov. 25, 2014).

A. Waiver and Federal Rule of Evidence 502

Rule 502 was designed “to provide a predictable, uniform set of standards under which

parties can determine the consequences of a disclosure of a communication or information covered

by the attorney-client privilege or work product protection[,]” codifying the privilege and how

parties may waive it. Fed. R. Evid. 502 advisory committee’s explanatory note. The aim of the

Rule is to serve the overriding interest of justice, see Inhalation Plastics, Inc. v. Medex Cardio-

Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 3731483, at *3 (S.D. Ohio Aug. 28, 2012) (citations

omitted), by preserving the privilege for those who take steps to protect it, while waiving the

privilege for those who neglect it. Attorney-client privilege—blatant in its name—is a privilege,

not a right. The Rule underscores the notion by detailing what actions must be taken to protect the

privilege.

The Rule states, in relevant part:

(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal

office or agency, the disclosure does not operate as a waiver in a federal or state

proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent

disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including

(if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

Fed. R. Evid. 502(b). Thus, a party may waive the attorney-client privilege “by conduct which

implies a waiver of the privilege or a consent to disclosure,” under 502(b). Marshall v. Belmont

Cty. Bd. of Comm’rs, No. 2:13-CV-966, 2014 WL 202055, at *3 (S.D. Ohio Jan. 17, 2014) (citing

United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999)); see also First Tech. Capital, Inc. v.

JPMorgan Chase Bank, N.A., No. 5:12-CV-289-KSF-REW, 2013 WL 7800409, at *2 (E.D. Ky.

Dec. 10, 2013).

Here, there is no evidence that the email at issue was intentionally or purposefully

produced, meaning Rule 502(b) applies. Under Rule 502(b), an unintentional disclosure

constitutes a waiver unless all three sub-elements are met. See N. Am. Rescue Prod., Inc. v. Bound

Tree Med., LLC, No. 2:08-CV-101, 2010 WL 1873291, at *8 (S.D. Ohio May 10, 2010) (citing

Fed. R. Evid. 502(b)). In other words, (1) the disclosure must be inadvertent, (2) the privilege

holder must have taken reasonable steps to prevent disclosure, and (3) the holder must have

promptly taken reasonable steps to rectify the error in order to preserve the privilege. Fed. R. Evid.

502(b).

B. Interplay of Rule 502 and Clawback Agreements

Along with subsection 502(b), it is also necessary to understand the language of Rule

502(e) when analyzing this dispute. Great-W. Life & Annuity Ins. Co., 2013 WL 5332410, at *10

(noting that Rule 502(e) “provide[s] [an] important tool[] in the effort to effectuate the intent of

Rule 502 as a whole”). The Rule states that “[a]n agreement on the effect of disclosure in a federal

proceeding is binding only on the parties to the agreement, unless it is incorporated into a court

order.” Fed. R. Evid. 502(e). The advisory committee’s note for Fed. R. Evid. 502(e) explains

that this section “codifies the well-established proposition” that parties may agree “to limit the

effect of waiver by disclosure between or among them.” See also Rajala v. McGuire Woods, LLP,

No. CIV.A. 08-2638-CM, 2010 WL 2949582, at *4 (D. Kan. July 22, 2010). These agreements

limiting waiver, known as “clawback” provisions, “essentially ‘undo’ a document production and

allow the return of documents that a party belatedly determines are protected by the attorney-client

privilege or work product immunity.” Id. (internal quotations omitted). As such, if a party does

not follow the steps outlined in Rule 502(b) or otherwise agreed upon in a clawback provision, the

privilege is waived.

In this case, the parties agreed:

c. if any document or ESI (including, without limitation, metadata) received by a

party is on its face clearly subject to a legally recognizable privilege, immunity, or

other right not to produce such information, the Receiving Party will promptly

notify the Producing Entity in writing that it has discovered Protected Information,

identify the Protected Information by Bates Number range, and return or sequester

such Protected Information until the Producing Entity confirms whether it does

indeed assert any privilege protecting this information. Once the Producing Entity

asserts privilege over such Protected Information (as described in Subparagraph (e)

below), the Receiving Party will return, sequester, or destroy all copies of such

Protected Information, along with any notes, abstracts or compilations of the

content thereof, within ten (10) business days of notice from the Producing Entity;

d. upon the request of the Producing Entity, the Receiving Party will promptly

disclose the names of any individuals who have read or have had access to the

Protected Information;

e. if the Producing Entity intends to assert a claim of privilege or other protection

over Protected Information identified by the receiving party, the Producing Entity

will, within ten (10) business days of receiving the Receiving Party’s written

notification, inform the Receiving Party of such intention in writing and shall

provide the Receiving Party with a log for such Protected Information that is

consistent with the requirements of the Federal Rules of Civil Procedure, setting

forth the basis for the claim of privilege, immunity or basis for non-disclosure, and

in the event, if any portion of the Protected Information does not contain privileged

or protected information, the Producing Entity shall also provide to the Receiving

Party a redacted copy of the Protected Information that omits the information that

the Producing Entity believes is subject to a claim of privilege, immunity or other

protection[.]

(Id. at 7–8). While the United States Court of Appeals for the Sixth Circuit has yet to address how

clawback agreements and Rule 502(b) interlace, the Court need not determine whether Rule 502(b)

or the clawback agreement controls here because Plaintiff has waived privilege under both

provisions.

C. Plaintiff has waived privilege.

The attorney-client privilege is designed “to promote ‘full and frank communications

between attorneys and their clients[,] . . . thereby encourag[ing] observance of the law and aid[ing]

in the administration of justice.’” Guy v. United States Healthcare Corp., 154 F.R.D. 172, 177

(S.D. Ohio) (quoting Commodity Futures Trading Comm’n. v. Weintraub, 471 U.S. 343, 348

(1985)). As a result, it is the client, not the attorney, who holds the privilege. See, e.g., Fausek v.

White, 965 F.2d 126, 132 (6th Cir. 1992). Still, “as the legal expert, it is the attorney who is

necessarily the guardian of the privilege.” EDNA SELAN EPSTEIN, THE ATTORNEY-CLIENT

PRIVILEGE AND THE WORK-PRODUCT DOCTRINE, Vol. I, at 7 (6th ed. 2017). That is, an attorney’s

decisions or actions that result in a waiver of the privilege will be valid, even if not authorized by

the client. Id.; see also Hilton-Rorar v. State & Fed. Commc’ns Inc., No. 5:09-CV-01004, 2010

WL 1486916, at *5 (N.D. Ohio Apr. 13, 2010) (an “attorney may (and quite frequently does) []

waive the privilege on behalf of the client”). For that reason, it is an attorney’s responsibility to

protect the sanctity of the privilege on behalf of the client, and this Court is mindful of that

responsibility when approaching the issue of waiver. After careful analysis, the Court finds that

Plaintiff’s counsel has failed to protect the sanctity of attorney-client privilege and, consequently,

has waived privilege. This is true under both the clawback agreement and Rule 502(b).

i. Failure to follow the procedure defined in the clawback agreement resulted in

waiver.

The Court turns first to the clawback agreement, particularly the parties’ obligations when

privileged documents are unintentionally produced. Rule 502(e) allows parties to define the steps

necessary to protect privilege in the case of disclosure. That agreement has a “[c]ontrolling effect”

on disclosure thereafter and is “binding” on the parties throughout the course of the litigation. Fed.

R. Evid. 502(e). Simply put, “a clawback agreement is a contract[.]” irth Sols., LLC v. Windstream

Commc’ns LLC, No. 2:16-CV-219, 2017 WL 3276021, at *13 (S.D. Ohio Aug. 2, 2017),

objections overruled, No. 2:16-CV-219, 2018 WL 575911 (S.D. Ohio Jan. 26, 2018). And, as

with any contract, there are consequences when a party fails to fulfill its obligations. Here, the

parties defined the steps needed to protect privilege.

Most significantly, the parties agreed that a producing party, after receiving notice of

potential inadvertent disclosure, would have ten business days in which to: (1) assert a claim for

privilege in writing; (2) produce a privilege log setting forth the basis of privilege for each

privileged document; and (3) produce redacted versions of the documents to the extent that only

portions of them were privileged. (Doc. 13 at 8). So, the parties defined the necessary steps to

preserve the sanctity of the privilege in the event of an inadvertent production.

The record shows that Plaintiff did not follow the agreed-upon procedure. Though

Defendant’s counsel made several attempts to obtain Plaintiff’s position on privilege, (see Docs.

93-1 at 2 (March 16, 2022 email); 93-1 at 3 (March 24, 2022 email); 93-1 at 8 (March 31, 2022

email); 93-1 at 13 (April 5, 2022 email)), Plaintiff’s counsel did not respond until April 8, 2022—

twenty-three days after Defendant’s counsel first gave notice of potential inadvertent disclosure

(Doc. 93-1 at 19). That alone constitutes waiver. Plaintiff agreed it would assert a claim of

privilege within ten business days of notice but waited far longer to say anything in response to

the notice. Under the plain language of the clawback agreement, Plaintiff waived privilege by

failing to respond within ten business days because that is how the parties defined what was

required to protect the sanctity of attorney-client privilege.

And, though the analysis may simply end there, the Court notes that Plaintiff’s failure to

abide by the obligations of the clawback agreement ran deeper. When Plaintiff finally responded

to Defendant’s notice, it only represented it was “going through documents at this time[.]” (Id.).

This falls far short of an assertion of privilege in writing—let alone the production of a companion

privilege log and redacted versions of the privileged documents—all of which the parties had

previously agreed would be necessary to protect privilege. (Doc. 13 at 8). In fact, it was not until

days later, on April 11, 2022, that Plaintiff even identified documents within the production that

purportedly contained privileged communications. (Doc. 93-1 at 18). And still, Plaintiff produced

no privilege log setting forth the basis for privilege as to each document. Plaintiff’s failure to

protect the privilege—through means which Plaintiff itself agreed should have controlling effect—

is thorough and unequivocal.

Plaintiff urges the Court to ignore the plain language of the clawback agreement for two

reasons. First, Plaintiff claims it was not obligated to assert privilege within ten days because

Defendant’s counsel enlarged the time to assert privilege. (See Doc. 94 at 3). In her April 5, 2022

email, Defendant’s counsel wrote: “If [Defendant’s counsel] do not hear back from [Plaintiff’s

counsel] before the depositions of [Plaintiff’s] representatives, [Defendant’s counsel] will presume

these documents are not privileged.” (Doc. 93-1 at 13). Plaintiff says this changed the terms of

the clawback agreement and made the waiver provision inapplicable.

The Court finds this argument without merit. Most importantly, Defendant’s counsel never

said she was forfeiting her client’s rights under the clawback agreement. To the contrary, it appears

that counsel was attempting to confirm whether Plaintiff considered the communications

privileged at all. By April 5, well beyond the ten-business-day window, Plaintiff had already

waived privilege. But, before Defendant could assert waiver, it had to first understand whether

Plaintiff would (belatedly) assert privilege. If, however, Plaintiff never asserted privilege,

Defendant would have no reason to concern itself with waiver before using the documents as it

pleased. And, as described above, even if the timeframe to assert privilege had been enlarged,

Plaintiff still did not get the clawback agreement right. A privilege log was never produced.

Second, Plaintiff says that Defendant cannot use the privileged emails because Defendant

failed to comply with the Federal Rules of Civil Procedure by “not ‘promptly return[ing],

sequester[ing], or destroy[ing] the specific information’ and . . . using the information despite the

claim being unresolved and [Plaintiff] maintaining privilege. Nor did [Defendant] attempt to

resolve the dispute[ ] but rather unilaterally deemed privilege waived and submitted the email with

its summary judgment briefs.” (Doc. 94 at 4–5 (citing Fed. Civ. R. 26(B)(8)(b)). Again, the Court

disagrees.

Under Rule 26(B)(8)(b), which is partially incorporated into the parties’ clawback

agreement (see Doc. 13 at 7–9), Defendant was obligated to return, sequester, or destroy the

privileged material once Plaintiff made a claim of privilege. Fed. Civ. R. 26(B)(8)(b). But, as

described above, Plaintiff did not make a claim of privilege until after privilege had already been

waived. Instead, Plaintiff’s counsel ignored several emails about the privilege issue from

Defendant’s counsel, before finally providing only the file names of documents which purportedly

contained privileged communications, with no companion privilege log. More still, Plaintiff’s

counsel never corrected Defendant’s counsel when they said privilege was waived and later that

the at-issue email was stipulated to by Plaintiff’s counsel. (See Docs. 93-1 at 17; 71 at 101). Under

the circumstances, Defendant’s counsel reasonably implied a waiver of privilege based on the

conduct of Plaintiff’s counsel. See Marshall v. Belmont Cty. Bd. of Comm’rs, No. 2:13-CV-966,

2014 WL 202055, at *3 (S.D. Ohio Jan. 17, 2014) (citing United States v. Dakota, 197 F.3d 821,

825 (6th Cir. 1999)). It follows that Defendant had no further duty under Rule 26(B)(8)(b).

At base, the clawback agreement is a binding contract. The parties agreed that if a party

was notified that potentially privileged materials had been disclosed, it would have ten business

days to assert privilege: in writing, with a privilege log, and with redacted documents, if

appropriate. The Court approved those terms and signed an order to that effect. The parties did

not agree that privilege would be asserted if a party said they were in the process of reviewing the

documents within twenty-three days of notice. They did not agree that an unspecific assertion of

privilege after twenty-six days—with no accompanying privilege log—would be sufficient. They

could have. In fact, if the ten-day timeframe was not workable for Plaintiff, it could have, through

mutual agreement with Defendant, designed any plan it wanted for addressing inadvertent

disclosure. What Plaintiff cannot do is unilaterally and retroactively alter the terms of its

agreement with Defendant, long after discovery, long after disclosure, and long after waiver. The

ten-day response time was approved by all—Plaintiff, Defendant, and the Court. And it must be

given effect. Under the plain language of the clawback agreement, Plaintiff waived privilege.

ii. Failure to follow the Federal Rules of Evidence also resulted in waiver.

But even if there was no legally binding contract, Plaintiff still waived privilege. As

described above, Federal Rule of Evidence 502(b) governs waiver in the case of inadvertent

disclosure of privileged material. The requirements of Rule 502(b) can be superseded by a

clawback agreement “only to the extent such an order or agreement provides concrete directives

regarding each prong of Rule 502(b) i.e., (1) what constitutes inadvertence; (2) what precautionary

measures are required; and (3) what the privilege holder’s post-production responsibilities are to

escape waiver.” irth Sols., LLC v. Windstream Commc’ns, LLC, No. 2:16-CV-219, 2018 WL

575911, at *2 (S.D. Ohio Jan. 26, 2018) (internal quotation marks, alterations, emphasis, and case

citations omitted).

Accordingly, if the clawback agreement provides insufficient guidance on how to analyze

the circumstances of the inadvertent production, Rule 502’s three-part test for waiver applies.

Here, the Court finds the clawback agreement sufficiently detailed to determine issues of

inadvertence and waiver, but—to indulge Plaintiff’s argument that the clawback agreement is not

binding—the Court will analyze the current dispute under Rule 502(b).

As previously discussed, there is no evidence of intentional disclosure, so the first element

of the three-part test is satisfied. Regarding the second element—which requires that the privilege

holder took reasonable steps to prevent disclosure—Plaintiff does not detail its steps to prevent the

disclosure, only stating that “[Plaintiff] conducted a thorough review of the documents prior to

production.” (Doc. 94 at 2). This statement, without further explanation of what steps Plaintiff’s

counsel took in the review process, is ambiguous. Yet, the Court need not decide whether Plaintiff

has satisfied the second element because Plaintiff unambiguously failed the third element and

waived privilege by not “promptly [taking] reasonable steps to rectify the error . . . .” Fed. R. Evid.

502(b)(3).

Beyond counsel’s noncompliance with the clawback agreement, Plaintiff’s counsel failed

to protect the sanctity of the attorney-client privilege repeatedly, over a ten-month period:

• Plaintiff disclosed privileged documents on February 24, 2022 (Doc. 94 at 2) and has not

told the Court what precautionary steps were taken to prevent disclosure of privileged

materials.

• Plaintiff was informed of the disclosure on March 16, 2022 (Doc. 93-1 at 2) and did nothing

with that information until April 11, 2022 (Doc. 94 at 3), after repeated prompting by

Defendant (see Docs. 93-1 at 2 (March 16, 2022 email); 93-1 at 3 (March 24, 2022 email);

93-1 at 8 (March 28, 2022 email); 93-1 at 11 (March 31, 2022 email); 93-1 at 13 (April 5,

2022 email)). Plaintiff attempted to identify privileged documents through a screenshot of

file names (Doc. 93-1 at 18), in lieu of using Bates numbers, despite admitting that the

privileged documents were included in a “voluminous” production (see Doc. 94 at 2). And

still Plaintiff did not expressly assert privilege over those documents.

• Two days later, on April 13, 2022, Defendant asked to confer with Plaintiff, because it

perceived that privilege had been waived. (Doc. 93-1 at 17). Plaintiff never responded.

• Twenty-two days later, Plaintiff’s counsel allowed its witness to answer questions about

the privileged emails in a deposition. (Doc. 71 at 101). And, after the deposition,

Plaintiff’s counsel never conferred with Defendant’s counsel or raised the issue with the

Court.

• Seventy-eight days later, Plaintiff’s counsel allowed the CEO of LifeBio to answer

questions about the at-issue emails again in her deposition. (Doc. 71 at 20). And, again,

Plaintiff did not bring the matter to the Court.

• On January 19, 2023, 181 days after the deposition, Defendant used the at-issue emails in

its summary judgment briefing. (Docs. 63, 64). Plaintiff did not object.

• On February 9, 2023, Defendant used the at-issue emails in its response to Plaintiff’s

Motion for Summary Judgment. (Doc. 81). Plaintiff did not object.

• On February 23, 2023, Defendant again used the at-issue emails in its reply to Plaintiff’s

response in opposition to Defendant’s Motion for Summary Judgment. (Doc. 86). Plaintiff

did not object.

• On March 10, 2023, Plaintiff’s counsel emailed chambers and asked the Court to hold a

discovery conference “to address a privileged document inadvertently produced to

[Defendant] in discovery.” Plaintiff’s counsel did not ask the Court to seal the filings that

included the privileged document or citations to it in any of his email correspondence with

the Court.

• On March 14, 2023, the Court held a telephonic status conference to discuss the instant

matter. At no point during the conference did Plaintiff’s counsel ask the Court to seal any

of the summary judgment briefing that references the privileged document. And Plaintiff

has not requested such a seal since the conference. As such, filings that reference the at-

issue email have been available on the public docket since their publication.

Plaintiff did not have a heavy burden to assert privilege but still failed to meet it, despite

ample opportunity to do so. Instead, counsel for Plaintiff ignored five emails from Defendant’s

counsel about the at-issue documents (see Docs. 93-1 at 2 (March 16, 2022 email); 93-1 at 3

(March 24, 2022 email); 93-1 at 8 (March 28, 2022 email); 93-1 at 11 (March 31, 2022 email); 93-

1 at 13 (April 5, 2022 email)), and allowed Defendant’s counsel to use the at-issue documents in

two depositions. At the deposition for Jeff Sanders, Plaintiff’s counsel stipulated to the at-issue

email, then objected to it, then agreed with Defendant’s counsel that the email had been stipulated

to. (Doc. 71 at 101). Then, Plaintiff’s counsel allowed the deponent to answer questions about

the email. (Id.). See Certain Underwriters at Lloyd’s, London v. Nat’l R.R. Passenger Corp., 218

F. Supp. 3d 197, 202 (E.D.N.Y. 2016) (finding that a party had not preserved privilege after

objecting at a deposition but permitting questioning on the document) (citations omitted). The

same thing happened at another deposition two month later. Plaintiff’s counsel objected to the

document but allowed questioning to proceed. (Doc. 71 at 20).

More still, counsel waited over 300 days (see Doc. 93-1 at 2)—after Defendant used the

documents in a fully briefed summary judgment motion (Docs. 63, 86)—to attempt to clawback

the documents, “long after the proverbial cat was out of the bag.” See Coorstek, Inc. v. Reiber,

No. CIVA08CV01133KMTCBS, 2010 WL 1332845, at *10 (D. Colo. Apr. 5, 2010). Put simply,

nothing about Plaintiff’s attempts to rectify this situation was attentive, diligent, or even

“reasonable.” Fed. R. Evid. 502(b)(3). Nor were they “prompt[]. . . .” Id.

Now, Plaintiff’s counsel wants the Court to clawback not only the at-issue emails but the

deposition testimony of two witnesses and Defendant’s summary judgment briefing. In other

words, Plaintiff wants the Court to protect the sanctity of attorney-client communications. But it

was Plaintiff’s obligation to treat the privilege like a crown jewel. Plaintiff continually failed to

meet its obligations and, as a result, waived privilege.

III. CONCLUSION

For those reasons, this Court agrees with Defendant that Plaintiff’s conduct waived the

privilege. As such, Plaintiff’s request to strike the at-issue email from the record is DENIED.

Defendant is permitted to use the at-issue email in its Motion for Summary Judgment filings.

Lastly, per the Court’s Order (Doc. 85), the parties are reminded of their obligation to make

publicly available all documents the Court did not grant leave to file under seal. As such, the

parties are ORDERED to file unsealed versions of all exhibits for which the Court did not

previously grant leave to seal or redact on or before May 11, 2023.

IT IS SO ORDERED.

Date: May 4, 2023 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE