Weighing Reasonableness

Weighing Reasonableness

Rule 502(b) asks one question twice: did the holder take reasonable steps to prevent the disclosure, and did the holder promptly take reasonable steps to rectify the error?¹ The rule never says what “reasonable” means. It lists no required precautions, no tolerable number of slipped documents, and no deadline for the fix. It codifies the majority common-law view that an inadvertent disclosure waives privilege only when adequate precautions were not taken, and it offers no definitive test, so the court must inquire and balance case by case.²

The stakes explain why the balance matters. A mistaken production could once waive the privilege and, in some circumstances, bring subject matter waiver, which forces the client to produce every privileged communication on the same subject.³ Rule 502(b) now provides that a mistaken disclosure is not a waiver if the party took reasonable steps to prevent it and promptly rectified the error. That makes the inquiry essentially a negligence test, and the word “reasonable” carries a case-by-case approach with no bright-line rules.⁴

One obvious consideration is proportion. A producer that mistakenly disclosed a small share of the documents it reviewed is more likely to be found reasonable than one that disclosed many privileged documents out of a limited set of discoverable materials. Other facts matter as well. An accelerated production deadline can let privileged documents slip past even a careful review. Search terms that find relevant data while screening out privileged documents can show reasonable steps. And a well-organized records system, built before litigation arose, is itself evidence of an effort to avoid mistaken disclosure.⁵

The Committee Notes list five factors that can structure the balance:

• the reasonableness of the precautions taken to prevent inadvertent disclosure, considering the scope of the discovery;
• the number of inadvertent disclosures;
• the extent of the disclosure;
• the measures taken to rectify the disclosure and the timing of those measures; and
• whether the overriding interests of justice would or would not be served by relieving the party of its error.⁶

The Committee Notes add that the importance of these factors varies from case to case.⁷ The Judicial Conference Rules Committee described the rule as a set of non-determinative guidelines, and it named the number of documents to be reviewed and the time constraints for production as considerations bearing on the reasonableness of the producer's efforts.⁸ These factors are considerations, not extra elements. The statutory test remains the three cumulative conditions, and the factors serve as evidence on them. The precautions factor and the number of disclosures bear on prevention, and the measures taken and their timing bear on rectification. The extent of the disclosure and the interests of justice test the outcome against its consequences. The approach also predates the rule: some courts had already moved away from a strict view of waiver and asked whether the error was excusable, whether the holder made a prompt attempt to remedy it, and whether preserving the privilege would be unfair to the opponent. The cost of avoiding waiver under a strict rule was a strong reason for that shift.⁹

The producer carries the burden of showing reasonableness, and the burden follows the facts, because the producer knows what its review did. In Victor Stanley, the court required the party that produced privileged documents and then asked for their return to prove that its review and production were reasonable. That party lost because it told the court nothing about its keywords, why it chose them, who designed the search, or whether anyone tested the results.¹⁰ A factor on which the producer offers no evidence cannot be listed in its favor, and the recipient can point to the gap.

Courts often present the weighing as a ledger. In Rhoads Industries v. Building Materials Corp., the court first asked whether the producer had at least minimally satisfied the three conditions of Rule 502(b). It then set out the factors and listed, under each, what favored the producer and what favored the recipient.¹¹ Under the delay-and-rectification factor, the same producer appears on both lists. The entries for the producer were that it answered the recipient's email at once, invoked Rule 26(b)(5)(B) to have the documents sequestered, and offered a cleansed hard drive, which the recipient refused. The entries for the recipient were that the recipient, not the producer, caught the mistake, that logging the documents took more than three weeks after the producer knew of the error, and that no suggestion for curing the production surfaced until October, after many depositions.¹² Putting both columns under one factor keeps a court from deciding the factor on whichever fact is most vivid. A quick reply does not cancel a three-week delay, and a delay does not cancel a quick reply, so the court has to decide which entries carry more weight on this record.

The final factor received its own pair of lists. For the producer, the court noted that losing the privilege would be highly prejudicial and that the recipient had shown no substantial unfairness beyond the burden of cross-referencing documents against the privilege log. For the recipient, the court noted that a more rigorous privilege review was called for and that letting the producer keep the privilege might fail to deter similar conduct in the future.¹³ The interests-of-justice factor therefore weighs three things: the harm to the holder if the privilege is lost, the harm to the opponent if it is kept, and the incentive the result creates for the next producer.

Because the factors guide and do not command, two courts can weigh the same record differently. Judges differ on what counts as extreme carelessness and on how to set carelessness against other concerns, such as the difficulty of stopping a recipient from using or passing on material when the body of documents is large, or the sensitive nature of what was disclosed.¹⁴ A written answer earns credit by laying out the facts on both sides of each factor and then committing to a conclusion with a reason.

A count of privileged documents cannot decide a Rule 502(b) problem by itself. An exam stem that reports twelve privileged emails slipping through a production invites the conclusion that twelve is either too many or acceptably few, and the factors show why neither conclusion follows from the count alone.

The third step does the real work, because an answer that lists facts for only one side never shows the balance the court must strike. The fourth step ends with a conclusion on the two conditions the statute names, since the factors inform those conditions and do not produce a separate verdict.