Williams v. District of Columbia

United States District Court for the District of Columbia · 2011 · Evidence

806 F. Supp. 2d 44 (D.D.C. 2011)

Updated August 22, 2026

Evidenceattorney-client privilegeinadvertent disclosurewaiverRule 502(b)Rule 26(b)(5)(B)reasonable steps to prevent disclosurereasonable steps to rectify error

Facts

The District produced to Williams a roughly 104-page termination packet in response to document requests, and within the first ten pages was a two-page email involving the Department of Health's then-Deputy General Counsel discussing matters related to Williams's proposed termination. After later realizing the email had been produced, the District sent Williams a November 22, 2008 letter under Rule 26(b)(5)(B) requesting its return, but Williams did not respond and the District did not follow up or seek court intervention for about two years and eight months. When Williams later listed the email as Exhibit 9A on a revised trial exhibit list in 2011, the District moved to exclude it as privileged and inadvertently disclosed.

Issue

Whether the District could avoid waiver of any privilege attached to the produced email under Federal Rule of Evidence 502(b). More specifically, the question was whether the District proved that it took reasonable steps to prevent the disclosure and promptly took reasonable steps to rectify the error after discovering it.

Rule

Under Federal Rule of Evidence 502(b), an inadvertent disclosure in a federal proceeding does not operate as a waiver only if the holder of the privilege proves that the disclosure was inadvertent, that it took reasonable steps to prevent disclosure, and that it promptly took reasonable steps to rectify the error, including, if applicable, following Federal Rule of Civil Procedure 26(b)(5)(B). Mere conclusory assertions that a privilege review occurred are insufficient to show reasonable precautions, and mere notice under Rule 26(b)(5)(B) is not necessarily sufficient to satisfy Rule 502(b)(3).

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal employment suit in Chicago, Lakefront Transit Authority produced a set of personnel records that included an internal email between agency counsel and a supervisor. Months later, the agency moved to bar use of the email, arguing it had been inadvertently produced and stating only that the employee should prove waiver because she kept the document after notice.

Who bears the burden on whether the inadvertent disclosure is excused under Federal Rule of Evidence 502(b)?

Explanation. Rule 502(b) protects against waiver only if the privilege holder proves all three elements: inadvertence, reasonable steps to prevent disclosure, and prompt reasonable steps to rectify the error. The receiving party's conduct does not shift that burden. That is the key allocation of proof established by the majority opinion.