United States District Court, W.D. Pennsylvania
MARK R. HORNAK, District Judge.
In this civil action the Plaintiff William Gilson, a former Pennsylvania State Trooper, has sued the Pennsylvania State Police ("PSP") and certain of its present or former agents for alleged wrongful acts committed in connection with the termination of his employment. Following his termination, Plaintiff filed a grievance and the matter went to arbitration. In preparation for the arbitration hearing, PSP's lawyer (an attorney from the Governor's Office of General Counsel ("OGC")) generated approximately 28 pages of notes. These included questions she intended to ask the witnesses as well as her mental impressions concerning certain aspects of the case.
After Plaintiff's termination was upheld by the arbitrator, this litigation ensued. The Defendants are now represented by Robert Willig, Esq., from the Office of the Attorney General ("OAG"). In connection with its defense of the case, the OAG requested that PSP provide all pertinent documentation within its possession. Among the materials produced to OAG were the notes which PSP's arbitration counsel had drafted in preparation for the arbitration proceeding.
These notes were later inadvertently produced to the Plaintiff on or about December 18, 2012 as part of discovery in this case. Ten months later, on October 11, 2013, Plaintiff's counsel utilized four pages of the notes in connection with the deposition of Marc Noce, a former State Trooper who was one of the original named defendants in this case. Mr. Noce was asked about the notes but did not know who had authored them. Consequently, Plaintiffs counsel sent an interrogatory to PSP on October 21, 2013 inquiring as to the identity of the author. After consulting with PSP, the OAG learned that the subject documents were part of the PSP lawyer's handwritten notes.
On October 30, 2103, defense counsel wrote a letter to Plaintiff's counsel identifying the documents and asking for their return, along with any other notes of the PSP attorney that were in Plaintiffs possession. Plaintiff declined this request, and Defendants thereafter filed a motion pursuant to Federal Rule of Evidence 502 and/or Local Rule 16(1)(D) to get the subject material back (ECF No. 60). Plaintiff then filed his response to the motion (ECF No. 62).
II. STANDARD OF REVIEW
Rule 502 provides, in relevant part, that, when an inadvertent disclosure of privileged material is made in a federal proceeding, the disclosure does not operate as a waiver 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). The analysis actually involves a two-step process: "[f]irst, it must be determined whether the documents in question were privileged or otherwise protected and second, if privileged documents are produced then a waiver occurs unless the three elements of FRE 502(b) are met.'" Wise v. Washington Cty., Civil Action No. 10-1677, 2013 WL 4829227, at *2 (W.D. Pa. Sept. 10, 2013) ( quoting Rhoades v. Young Women's Christian Ass'n of Greater Pittsburgh, Civ. No. 09-261, 2009 WL 3319820, at *2 (W.D. Pa. 2009)) (alteration in the original). The disclosing party has the burden of proving that each of Rule 502(b)'s elements has been satisfied. Wise, 2013 WL 4829227, at *2 (citing Rhoades, 2009 WL 33319820, at *2).
Courts in this circuit also consider the following related (and somewhat overlapping) factors in determining whether waiver has occurred: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving the party of its errors. See Wise, 2013 WL 4829227, at *2 (W.D. Pa. Sept. 10, 2013) ( citing Rhoades, 2009 WL 3319820, at *2 and Smith v. Allstate Ins. Co., 912 F.Supp.2d 242, 247 (W.D. Pa. 2012)); Carlson v. Carmichael, Civil Action No. 10-3579, ...