The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO EXCLUDE USE OF DOCUMENTS
Before the Court is the Defendant's "Motion to Exclude Use of Privileged Confidential Documents by Opposing Counsel" filed on September 29, 2009. See Docket No. 55. The Plaintiff filed a response in opposition to the motion on October 14, 2009. See Docket No. 64. For the reasons set forth below, the Court grants in part and denies in part the Defendant's motion in limine to exclude the use of certain documents.
The defendant, Nufarm Americas, Inc., moves to exclude the plaintiff's, DJ Coleman, Inc.'s, "use of or reliance on privileged, confidential documents" under Rules 502 of the Federal Rules of Evidence and the North Dakota Rules of Evidence. Nufarm contends that eight documents were inadvertently disclosed at the deposition of Nufarm's expert William Mahlburg as Exhibits 3, 7, 8, 9, 12, 13, 14, and 15. DJ Coleman contends that the documents are not privileged and, even if they are, the privilege has been waived because Nufarm disclosed the documents in discovery.
The attorney-client privilege is "the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Rule 502 of the Federal Rules of Evidence sets forth the guidelines for determining whether the attorney-client privilege is waived. Rule 502(b) provides:
(b) Inadvertent disclosure. When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).*fn1
The "attorney-client privilege" is "the protection that applicable law provides for confidential attorney-client communications." Fed. R. Evid. 502(g)(1).
In diversity actions, state law determines the existence and scope of the attorney-client privilege. Gray v. Bicknell, 86 F.3d 1472, 1482 (8th Cir. 1996). The North Dakota Supreme Court applies five factors in determining whether a document has lost its privilege through inadvertent disclosure: (1) reasonableness of precautions taken to prevent inadvertent disclosure; (2) number of inadvertent disclosures; (3) extent of the disclosure; (4) delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would be served by relieving a party of its error. Farm Credit Bank of St. Paul v. Huether, 454 N.W.2d 710, 723 (N.D. 1990) (citing Parkway Gallery Furniture, Inc. v. Kittinger/Pa. House Group, Inc., 116 F.R.D. 46 (M.D.N.C. 1987)).
The North Dakota Rules of Evidence also protect certain communications between an attorney and his client:
(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client, if the communication was made:
(1) between the client or a representative of the client and the client's lawyer or a representative of the lawyer,
(2) between the lawyer and a representative of the lawyer,
(3) by the client or a representative of the client or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action ...