## Facts

- Coburn Group, LLC sued Whitecap Advisors LLC for breach of an alleged oral agreement to pay referral fees for investors directed to Whitecap funds.
- During discovery, Whitecap produced about 40,000 pages from roughly 72,000 potentially responsive pages after a privilege and responsiveness review by paralegals supervised by counsel.
- Whitecap inadvertently produced a half-page internal email dated September 26, 2007, from an employee to a principal, created after the lawsuit was filed while counsel was gathering information for the litigation.
- Coburn used the email during a deposition; Whitecap objected on work-product grounds upon realizing the disclosure and demanded return of the email the next day.
- Coburn refused to return the email, contending it was not work product and asserting it was needed to show Whitecap misled the court in earlier motion practice.
- Whitecap moved to compel return of the email and to strike deposition testimony based on it; the dispute ultimately centered on the status and use of this email.

## Issues

1. Whether the September 26, 2007 internal email was protected work product because it was prepared in anticipation of litigation.
2. If the email was work product, whether Whitecap waived protection by inadvertently producing it, applying Federal Rule of Evidence 502(b).
3. Whether Coburn showed substantial need and undue hardship sufficient to overcome work-product protection, and whether Coburn’s counsel could ethically retain and use the email after the privilege claim.

## Decision

- The court held the email was protected by the work-product doctrine because it was prepared after the suit was filed as part of counsel-directed litigation fact-gathering.
- The court found no waiver under Federal Rule of Evidence 502(b) because the disclosure was inadvertent, Whitecap took reasonable steps to prevent disclosure, and Whitecap promptly sought to rectify the error.
- The court held Coburn did not establish substantial need or undue hardship because comparable information could be obtained through other discovery tools.
- The court granted Whitecap’s requested relief as to the email, ordering Coburn to return or destroy it, barring its use, and striking deposition testimony derived from it to the extent at issue.

## Legal Principles

- Work-product protection covers documents prepared in anticipation of litigation, including factual compilations and information gathered at counsel’s direction, not only attorney mental impressions.
- Under Federal Rule of Evidence 502(b), inadvertent disclosure does not waive work-product protection when the holder (1) discloses inadvertently, (2) takes reasonable steps to prevent disclosure, and (3) promptly takes reasonable steps to rectify the error.
- A party seeking discovery of work product must show substantial need and undue hardship; impeachment or generalized claims of litigation misconduct do not, without more, satisfy this standard where other discovery is available.
- In federal litigation, federal privilege and work-product rules govern the consequences of inadvertent production; professional-conduct arguments do not override the federal evidentiary regime once protection is established.

## Conclusion

The court treated the internal post-filing email as protected work product, found no waiver from inadvertent production under Rule 502(b), rejected Coburn’s attempt to overcome the protection, and required return or destruction of the email while barring and striking any use derived from it.


Coburn Grp., LLC v. Whitecap Advisors LLC, 640 F. Supp. 2d 1032 (N.D. Ill. 2009)