## Facts

- Parkway Gallery Furniture, Inc., a retail furniture dealer, sued Kittinger/Pennsylvania House Group, Inc., a furniture manufacturer, in federal court; the underlying action included antitrust and related claims.
- During discovery, Parkway sought document production from Kittinger.
- Kittinger produced approximately 12,000 pages of documents, representing virtually all of its files.
- About 20 attorney–client privileged documents were included in the production, several with markings indicating confidentiality or privilege.
- After learning privileged materials had been produced, Kittinger asserted the disclosure was inadvertent and sought protection to prevent use of the documents.
- Parkway argued the production waived privilege and that it could use the documents.

## Issues

1. Whether inadvertent production of attorney–client privileged documents during a large-scale civil discovery production waives the privilege as to those documents.
2. What circumstances govern whether a producing party may reclaim inadvertently produced privileged materials and bar their use.

## Decision

- The court held the inadvertent production did not waive the attorney–client privilege under the circumstances.
- The court allowed Kittinger to reassert privilege over the approximately 20 documents.
- Parkway was required to return the documents or refrain from using them in the litigation.

## Legal Principles

- Inadvertent disclosure of attorney–client communications does not automatically waive privilege; waiver depends on the totality of the circumstances.
- Courts may evaluate inadvertent disclosure using multiple factors, including:
  - Reasonableness of precautions taken to prevent disclosure.
  - Volume of production and the number of privileged documents inadvertently produced.
  - Extent and context of the disclosure.
  - Promptness and adequacy of corrective measures after discovery of the error.
  - Fairness and prejudice considerations as to both parties.
- A strict “any disclosure equals waiver” rule and a per se “no waiver for inadvertence” rule are both disfavored; the inquiry is case-specific.

## Conclusion

The court treated the inclusion of a small number of privileged documents in a large production as an inadvertent error that, assessed under a multi-factor fairness analysis, did not amount to waiver; the producing party could claw back the documents and the receiving party could not use them.


Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Grp., Inc., 116 F.R.D. 46 (M.D.N.C. 1987)