## Facts

- Christina Conyers Williams, a former District of Columbia Department of Health employee, sued the District alleging retaliation under the D.C. Whistleblower Protection Act.
- During discovery, the District produced a “recommendation to terminate packet” relating to Williams’s employment.
- The production included an email involving the Department of Health’s Deputy General Counsel discussing Williams’s proposed termination.
- The District later asserted the email was protected by attorney-client privilege, but it had produced the email without clearly designating it as privileged and without specifically logging it as privileged.
- After discovering the production, the District sent a letter (Nov. 22, 2008) asserting the disclosure was inadvertent and demanding return and non-use of the email.
- Williams did not return the email and did not agree to treat it as privileged.
- The District took no court action for nearly three years.
- In 2011, Williams listed the email as a trial exhibit; the District moved in limine to exclude the email as privileged under Federal Rule of Evidence 502(b).

## Issues

1. Whether the District took reasonable steps to prevent disclosure of the privileged email before producing it, as required by Fed. R. Evid. 502(b)(2).
2. Whether, after learning of the disclosure, the District promptly took reasonable steps to rectify the error, as required by Fed. R. Evid. 502(b)(3).
3. Whether failure to satisfy Rule 502(b)’s requirements resulted in waiver of attorney-client privilege as to the produced email.

## Decision

- The court denied the District’s motion in limine to exclude the email.
- The court held the District failed to meet its burden under Rule 502(b) to show both reasonable preventive measures and prompt, reasonable corrective measures.
- The court concluded the inadvertent production waived attorney-client privilege as to the email, permitting Williams to use it at trial.

## Legal Principles

- The party asserting attorney-client privilege and seeking to avoid waiver under Fed. R. Evid. 502(b) bears the burden of proving the rule’s requirements are met.
- “Reasonable steps to prevent disclosure” require a concrete, credible showing of a privilege-screening and production process; generalized objections and vague assurances are insufficient.
- A producing party’s failure to provide specific identification of privileged material (including through a usable privilege log or equivalent disclosure controls) weighs against a finding of reasonable prevention.
- “Promptly tak[ing] reasonable steps to rectify the error” requires more than a notice letter when the receiving party does not comply; prolonged inaction and failure to seek court relief weigh strongly toward waiver.
- Rule 502(b) protects against waiver only when the producing party acts reasonably both before production and after discovering an inadvertent disclosure.

## Conclusion

The court applied Rule 502(b) to hold that an inadvertent production can waive attorney-client privilege when the producing party cannot substantiate reasonable pre-production screening and then delays for years without seeking judicial relief after the receiving party refuses to return the document.


Williams v. District of Columbia, 806 F. Supp. 2d 44 (D.D.C. 2011)