## Facts

- Larry Peterson was convicted in New Jersey state court in 1989 of sexual assault and murder based on a prosecution by the Burlington County Prosecutor’s Office.
- After later DNA testing excluded Peterson as the source of crime-scene evidence, a New Jersey court vacated his conviction and the prosecution declined to retry him.
- Peterson filed a state-court compensation suit against New Jersey in November 2006.
- Peterson filed a separate federal civil action in June 2007 asserting federal constitutional and related state-law claims against the county prosecutor’s office, the prosecutor, and other officials connected to the investigation and prosecution.
- During federal discovery, Peterson’s counsel inadvertently produced documents to defendants that Peterson claimed were protected by attorney-client privilege and/or the work-product doctrine.
- Peterson moved for a clawback under Fed. R. Civ. P. 26(b)(5)(B) and Fed. R. Evid. 502, seeking an order requiring return (or destruction) of the produced materials and relief from waiver.

## Issues

1. Whether the inadvertently produced documents were protected by attorney-client privilege or the work-product doctrine.
2. If any were protected, whether the inadvertent disclosure avoided waiver under Fed. R. Evid. 502(b) (inadvertence, reasonable prevention steps, and prompt rectification).
3. Whether, and to what extent, Fed. R. Civ. P. 26(b)(5)(B) required defendants to return or destroy the materials.

## Decision

- The court granted the motion in part and denied it in part.
- The court found most of the produced documents were not privileged or protected work product and therefore were not subject to clawback.
- As to documents arguably within a protection, the court held Peterson did not carry his burden to show the requirements of Fed. R. Evid. 502(b) were satisfied to prevent waiver.
- The court identified nine documents as “obviously work product” and ordered their return, relying on fairness considerations in light of the case’s wrongful-conviction context.

## Legal Principles

- The party asserting attorney-client privilege or work-product protection bears the burden to establish the protection applies to each document.
- Fed. R. Evid. 502 does not remove the threshold requirement that the proponent prove the existence of a privilege or protection.
- Under Fed. R. Evid. 502(b), inadvertent disclosure avoids waiver only if the disclosure was inadvertent, the holder took reasonable steps to prevent disclosure, and the holder promptly took reasonable steps to rectify the error.
- Fed. R. Civ. P. 26(b)(5)(B) permits a producing party to seek return, sequestration, or destruction of inadvertently produced privileged or protected material, but relief depends on establishing the protection and satisfying applicable non-waiver standards.
- Courts may order return of clearly protected work product where fairness so requires, even when most materials are not shown to be protected or are treated as waived.

## Conclusion

The court largely denied Peterson’s request to claw back inadvertently produced materials because he failed to prove most were privileged and failed to satisfy Rule 502(b) for any arguably protected items, but it required return of nine documents that were plainly work product based on fairness concerns tied to the wrongful-conviction setting.


Peterson v. Bernardi, 262 F.R.D. 424 (D.N.J. 2009)