Sure Fit Home Products, LLC v. Maytex Mills Inc.

Background

Maytex Mills Inc. applied for an order concerning Exhibits 88, 89, and 90, which the plaintiffs had produced during discovery. Maytex asked the court to rule that the documents were not protected by attorney-client privilege or the work-product doctrine. Alternatively, Maytex asked the court to find that the plaintiffs had waived any privilege or protection. The court addressed waiver and did not reach whether the documents were otherwise protected.

Waiver standard

The party asserting attorney-client privilege or work-product protection has the burden of establishing the protection and showing that it was not waived. The parties’ stipulated protective order allowed either side to claw back documents produced inadvertently. The court explained that, when a protective order governs discovery, courts generally find waiver only when the production was “completely reckless”—meaning the producing party showed no regard for preserving the confidentiality of the documents.

The disclosures and delays

The plaintiffs gave all three documents to adversaries in a separate patent case in August 2018. Those defendants used the documents together as an exhibit to a reply supporting their motion for summary judgment in May 2019, but the plaintiffs did not object to that use. In April 2021, the plaintiffs objected to the admission of the documents as proposed trial exhibits, but did not assert attorney-client privilege or work-product protection. The documents remained designated trial exhibits more than a year later.

The plaintiffs produced the three exhibits to Maytex in this case in about mid-2021. When Maytex later asked the plaintiffs to admit the authenticity of the documents, the plaintiffs asserted privilege over only Exhibit 89 in their April 11, 2022 response. During a later meet-and-confer on April 25, 2022, the plaintiffs asserted protection over all three documents and sought to claw them back. The opinion states that the plaintiffs identified no application to the court in the separate patent case asserting privilege over the documents.

Ruling

Judge Gabriel W. Gorenstein found that the plaintiffs’ handling of the documents met the “completely reckless” standard. The court emphasized that the plaintiffs had disclosed the documents in two separate matters, had multiple opportunities to recognize and assert privilege, and did not take corrective action after the documents were used in the separate case. The court concluded that the plaintiffs waived any claim to attorney-client privilege or work-product protection for Exhibits 88, 89, and 90. Because it resolved the matter on waiver, the court did not decide whether the exhibits would otherwise have qualified for either protection.

Classification

This is a procedural discovery order. It resolved an ancillary question about disclosure protections rather than deciding the parties’ underlying claims.