## Facts

- Sewing-machine retailers sued manufacturers and distributors, including Swiss-Bernina, alleging antitrust violations such as price discrimination and conspiracy in restraint of trade.
- During the litigation, plaintiffs (or their investigators) repeatedly searched a dumpster in a parking lot serving Swiss-Bernina’s office.
- Office trash was collected into an internal container and then deposited into an outdoor dumpster accessible from a public parking area.
- Over roughly two years, plaintiffs recovered hundreds of documents, including handwritten draft letters from Swiss-Bernina’s president to corporate counsel.
- The parties did not dispute that the drafts were intended as confidential attorney-client communications when created.
- Plaintiffs served interrogatories seeking information about the drafts and related communications; Swiss-Bernina objected based on attorney-client privilege.
- A magistrate denied a motion to compel, reasoning that plaintiffs’ method of obtaining the documents was improper.
- Plaintiffs sought district-court review of the magistrate’s ruling.

## Issues

1. Whether attorney-client privilege protects otherwise confidential communications after the holder discards them into a dumpster accessible to the public.
2. Whether discarding privileged drafts in such a manner constitutes waiver by loss of confidentiality due to failure to take reasonable protective measures.
3. Whether perceived impropriety in an opponent’s acquisition of discarded documents justifies denying discovery when the documents are no longer privileged.

## Decision

- The district court overturned the magistrate’s refusal to compel discovery on privilege grounds.
- The court held that the attorney-client privilege did not apply to the discarded drafts because confidentiality was not preserved.
- By placing the documents in a publicly accessible dumpster, the privilege holder waived privilege through failure to safeguard the communications.
- Plaintiffs were permitted to pursue discovery and use the recovered materials as a basis for interrogatory answers.

## Legal Principles

- Attorney-client privilege applies only to communications maintained in confidence; the privilege is lost when confidentiality is abandoned.
- A privilege holder must take reasonable steps to preserve confidentiality; unsecured disposal of sensitive communications can effect waiver.
- Once a communication is exposed to the public (or to uncontrolled third-party access), privilege generally does not bar an opposing party from using it or seeking related discovery.
- Ethical concerns about an adversary’s conduct do not revive privilege when the legal requirements for privilege—especially confidentiality—are absent.

## Conclusion

The court held that discarding attorney-client draft communications into a publicly accessible dumpster defeated confidentiality and waived privilege, so the opposing party could obtain discovery and use the discarded documents in the litigation.


Suburban Sew ’N Sweep, Inc. v. Swiss-Bernina, Inc., 91 F.R.D. 254 (N.D. Ill. 1981)