Heriot v. Byrne, No. 08 C 2272, Slip Op. (N.D. Ill., Mar. 20, 2008) (Ashman, Mag. J.).

Judge Ashman denied in part and granted in part Defendants’ discovery motion seeking certain allegedly privileged documents, and denied in part and withheld ruling on the remainder of plaintiffs discovery motion regarding allegedly privileged documents.  Of particular interest, the Court held that new Fed. R. Evid. 502 governing inadvertent disclosure of privileged documents applied in this case although it was not filed after the rule took effect because the case was pending at that time and because defendants, who opposed application of the rule, identified no reason that its application in this case would be unjust.  Having decided that Fed. R. Evid. 502(b) applied to allegedly inadvertent disclosures, the Court identified the test to determine whether the disclosure was a waiver of privilege as follows:  1) determine whether the disclosed material was privileged; 2) determine whether all three Fed. R. Evid. 502(b) factors are met, including inadvertence.  The Court also noted that in analyzing the three factors courtss were free to consider any of the five factors from Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371 (7th Cir. 2008).