[Post Process: the court applies FRE 502(b) for its analysis of a situation of inadvertent production]
On the basis of this evidence, I conclude that [Producing Party] has not carried its burden of disproving waiver. [Producing Party's] discovery documents were inspected by attorneys and support staff…before they were produced… As the incident involving the re-exam file indicates, there was no surprise or deception on the part of [Requesting Party's] counsel. [Counsel for Producing Party] not only had the opportunity to inspect the documents prior to the arrival of [Requesting Party's] counsel, it had two additional opportunities to do so after [Requesting Party] had reviewed [Producing Party's] documents, as [Requesting Party] provided [Producing Party's] counsel with both hard copies and electronic, text-searchable copies of the documents [Requesting Party] had selected for copying. I conclude that [Producing Party] did not pursue all reasonable means of preserving the confidentiality of the documents produced to [Requesting Party], and therefore that the privilege was waived. The fact that [counsel for Producing Party] did not intend to produce any privileged documents is not dispositive.
Relion, Inc. v. Hydra Fuel Cell Corp., 2008 U.S. Dist. LEXIS 98400 (D. Or. Dec. 4, 2008 ).
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