Crane on Law by James Crane

In case you missed it, this past summer, the District Court of South Dakota presided over a breach of contract claim between a plaintiff franchisee versus a defendant franchisor regarding the misappropriation of an advertising idea. During his deposition, plaintiff’s president revealed the legal opinion of a patent attorney retained by plaintiff inadvertently, but without objection.

Defendant franchisor then sought the related and ostensibly privileged documents from the patent attorney on the basis that privilege had been waived.

When plaintiff moved to quash the demand, the Court held that the communication (and the documents) was privileged. The most interesting part was that the Court relied on the new “safe harbor” provision in FRCP 26(b)(5) to hold that because the disclosure was inadvertent, there was no consent to waiver. The Court’s position was that the Rules, as amended, apply to all “information” rather than simply electronic evidence.

We can all expect continued sparring among counsel regarding the breadth of the Safe Harbor protections. If you have had interesting experiences regarding the application of the amended Rules, I would love to hear from you.