The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER SUSTAINING IN PART AND OVERRULING IN PART OBJECTIONS TO MAGISTRATE JUDGE'S ORDER RE INADVERTENT DISCLOSURE
Defendant Dorsey & Whitney, LLP has objected to the Magistrate Judge's June 3, 2009 Order Regarding Inadvertent Disclosure [Doc. 180.] For the following reasons, the Court SUSTAINS in part and OVERRULES in part the objections.
1. The Four Privileged Documents at Issue
There are four privileged documents at issue here, all of which Luna Gaming produced to Dorsey. These privileged documents arise from Luna Gaming's retention of the law firm Akin Gump Strauss Hauer & Feld LLP. Luna Gaming retained Akin Gump for its opinion regarding the suitability of certain Indian lands for gaming. These are the same Indian lands related to the underlying dispute between Luna Gaming and Dorsey.
The four documents are (1) a November 7, 2002 retainer agreement from Akin Gump ("Retainer Agreement"); (2) a letter effecting the retainer agreement from Linda Pierce of Akin Gump ("Retention Letter"); (3) a legal memorandum from Akin Gump dated December 2002 ("2002 Memo"); and (4) another legal memorandum from Akin Gump dated August 2003 ("2003 Memo") (collectively the "Privileged Documents"). Of these four documents, only two of the documents-the Retainer Agreement and the 2003 Memo-were used at depositions or in court filings. The other two documents were never used by any party, but are related by subject matter.
Luna Gaming and Dorsey entered into a Protective Order, which outlines procedures for resolving certain disputes regarding inadvertently produced privileged documents. (See August 27, 2007 Protective Order, Doc. 20.) Both parties and the magistrate judge signed the Protective Order. (See id.)
2. Dorsey Used the Privileged Documents at Depositions
Luna Gaming produced the Privileged Documents in August 2007. The next month, on September 25, 2007, Dorsey's counsel deposed Donald Buch. Dorsey's counsel designated one of the privileged documents-the 2003 Memo-as an exhibit, and asked Mr. Buch to review it before asking three foundational questions. (Noonan Decl., Ex. AA, Tab 8, 112:10--113:8.) This took nearly two minutes, and it appears that Luna's counsel also received a copy of the privileged 2003 Memo. (Notice of Lodg. Ex. KK, video excerpt from Buch deposition.)
Luna Gaming's counsel did not object to the use of the privileged document or ask for its return. (Noonan Decl., Ex. AA, Tab 8, 112:10--113:8.)
At the deposition of Thomas Celani on November 14, 2007, Dorsey's counsel used and marked as exhibits both the 2003 Memo and the Retainer Agreement. When Dorsey's counsel introduced the Retainer Agreement, this time Luna's counsel objected and invoked the claw-back provision. (Noonan Decl., Ex. AA, Tab 10, 537:22--543:5.) Dorsey's counsel resisted, arguing that the privilege had been waived with respect to all Akin Gump documents because Luna's counsel failed to object to their use at the Buch deposition. (Id. at 538:24--539:3.) Luna's counsel maintained that the documents were privileged, but nevertheless permitted questioning regarding the Retainer Agreement. (Id. at 537:22--540:25.) Dorsey's counsel then introduced the 2003 Memo (the same memo used at the Buch deposition two months before), but Luna's counsel did not specifically object to this document and permitted questioning. (Id. at 541:3--543:5.)
The next day, Dorsey again used the 2003 Memo and the Retainer Agreement at the deposition of James Oegema. Luna's counsel objected and invoked the claw-back provision. (Noonan Decl., Ex. AA, Tab 11, 459:4--467:1.)
The Privileged Documents were not used at any further depositions. And there were no follow-up discussions between counsel about their return.
3. The Privileged Documents in the Summary Judgment Motions
Dorsey lodged the 2003 Memo and the Retainer Agreement in support of its motion for summary judgment filed on December 11, 2007. (Noonan Decl., Ex. AA, Tab 2, at 47--57.) In its brief, Dorsey cited the privileged documents, arguing that Luna Gaming's retention of other firms weighed against Luna Gaming reasonably believing that Dorsey represented it. (See Chapin Decl., Ex. A at 9, n.2.) Luna countered by stating that it retained Akin Gump only for a second opinion regarding the legal advice it received from Dorsey. (Noonan Decl., Ex. AA, at 90.)
In its order on the motions for summary judgment, the Court cited a Luna Gaming declaration. The declaration, which cited the 2003 Memo, stated that Luna Gaming retained Akin Gump to get a second opinion ...