Summary
The United States District Court for the Southern District of Florida addresses Wayfair LLC’s second motion to compel production of attorney-client communications in a products-liability action arising from injuries allegedly caused by a fire pit. The Court finds that Plaintiffs waived privilege as to attorney-client communications included in their September 23, 2025 ESI production because they failed to take reasonable preventive and remedial steps under Federal Rule of Evidence 502(b), but declines to impose a wholesale subject-matter waiver. The motion is granted in part and denied in part.
Holdings
- Plaintiffs waived attorney-client privilege as to the communications included in their September 23, 2025 ESI production because they failed to establish that they took reasonable steps to prevent disclosure and reasonable, prompt steps to rectify the disclosure.
- The waiver was limited to communications actually included in Plaintiffs' September 23, 2025 ESI production and did not extend to all undisclosed communications concerning the same subject matter.
- The crime-fraud exception did not apply to the attorney-client communications Plaintiffs otherwise withheld because Defendant failed to make the required prima facie showing that Plaintiffs were engaged in or planning criminal or fraudulent conduct and that the communications were in furtherance of that conduct.
Questions Presented
- Whether Plaintiffs waived attorney-client privilege under Federal Rule of Evidence 502(b) by producing privileged communications, failing to promptly rectify the initial disclosure, reproducing the same communications after asserting a claw-back, and failing to investigate for additional privileged materials.
- Whether the crime-fraud exception to the attorney-client privilege applied based on alleged witness tampering, subornation of perjury, or fraud by Plaintiffs' former counsel.
- Whether the waiver extended to undisclosed communications on the same subject matter.
Disposition
other
Cases Cited (29)
- Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)(followed)
- United States v. Noriega, 917 F.2d 1543, 1551 (11th Cir. 1990)(followed)
- Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1416–1417 (11th Cir. 1994), opinion modified on reh'g, 30 F.3d 1347 (11th Cir. 1994)(followed)
- Thermoset Corp. v. Bldg. Materials Corp. of Am., No. 14-CV-60268, 2015 WL 1565310, at *7 (S.D. Fla. Apr. 8, 2015)(followed)
- Penrod Bros., Inc. v. City of Miami Beach, Fla., No. 23-CV-23362, 2025 WL 1555991, at *2–3(followed)
- Latele Television, C.A. v. Telemundo Commc'ns Grp., LLC, No. 12-CV-22539, 2014 WL 4449451, at *4 (S.D. Fla. Sept. 10, 2014)(followed)
- Koch Foods of Alabama, LLC v. Gen. Elec. Capital Corp., 303 F. App'x 841, 846 (11th Cir. 2008)(followed)
- Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260–263 (D. Md. 2008)(followed)
- Preferred Care Partners Holding Corp. v. Humana, Inc., 258 F.R.D. 684, 698–700 (S.D. Fla. 2009)(followed)
- In re Grand Jury Subpoena, 2 F.4th 1339, 1345–1351 (11th Cir. 2021)(followed)
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Cited In (0)
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Court Document
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