The opinion of the court was delivered by: THOMAS PLATT, District Judge
Plaintiff Atronic International, GMBH ("Plaintiff" or
"Atronic") has filed objections to a Report and Recommendation
issued by United States Magistrate Judge Michael L. Orenstein on
March 14, 2005 ("Order"). The documents at issue are two e-mails
(1) an e-mail communication dated November 22, 2002 from an
Atronic employee to Atronic's international counsel ("November
2002 e-mail") and (2) a December 11, 2002 e-mail from the same
Atronic employee to the same counsel ("December 2002 e-mail").
According to the Defendant, the two e-mails were originally
produced by the Plaintiff sometime at the end of 2003 as part of
initial disclosures under Federal Rule of Civil Procedure 26. The
e-mails were again produced to the Defendant on January 7, 2005
as a binder of exhibits that the Plaintiff intended to use at a
subsequent deposition. Once the Plaintiff realized it had unwittingly produced these
communications, it sought an order from Judge Orenstein directing
the return of the two documents and barring the Defendant from
using information contained in the documents for any purpose.
In the Order, Magistrate Orenstein determined that at least one
of the documents the December 2002 e-mail constituted
privileged information. Assuming, nevertheless, that both e-mails
were shielded by the attorney-client privilege, Judge Orenstein
ultimately found that the Plaintiff's inadvertent disclosure of
the two e-mails resulted in a waiver of Plaintiff's claim to
privilege as to those documents.
The Plaintiff vehemently objects to the Order on the grounds
that Judge Orenstein "ignored the reality that New York law does
not recognize waiver of the attorney-client privilege to occur
through inadvertent production." Plaintiff further alleges that
Judge Orenstein "misapplied cases under federal law,"
misapprehended the law, and "was clearly motivated by his
New York law is not that absolute. It does recognize that
inadvertent disclosure of documents containing legal advice may
constitute a waiver of the attorney-client privilege. See,
e.g., 58A N.Y. Jur.2d § 880 (outlining factors used in
determining whether inadvertent disclosure of attorney-client
communications constitutes waiver of the privilege); Manufacturers and Trader's
Trust Co. v. Servotronics, Inc., 132 AD2d 392, 400-401 (1987)
("We reject the absolute view that an attorney may never waive
the privilege"). While the standard for waiver of the privilege
under New York State law*fn1 is worded differently than the
federal one,*fn2 this is essentially a distinction without a
meaningful difference. Moreover, New York federal district courts
routinely apply the federal standard for inadvertent disclosure
of attorney-client information. Lois Sportswear, U.S.A., Inc. v.
Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985). The
Court sees no reason why this federal district court should
depart from this practice.
Accordingly, the Report and Recommendation is hereby adopted
and affirmed. SO ORDERED.
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