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Vigor Works, LLC v. White Skanska, JV

Superior Court of Massachusetts, Suffolk

February 12, 2019



          Mitchell H. Kaplan Justice of the Superior Court

          This action arises out of the construction of the Fore River Bridge Replacement Project in Quincy and Weymouth, Massachusetts (the Project). The defendant White Skanska, JV (WS) was the general contractor on the Project and the plaintiff, Vigor Works, LLC (Vigor) was one of the subcontractors. A description of the facts underlying the dispute between Vigor and WS is unnecessary for the resolution of the motion now before the court.

          Vigor asks the court to order WS to return or destroy two documents that Vigor asserts contain attorney/client communications and were inadvertently produced to WS during discovery. The two documents are: (1) a four page email sent by Vigor’s attorney to a Vigor executive that was, as part of the document production process in this case, apparently imaged together with (a) a letter to WS that included a marked-up copy of a draft of the subcontract between the parties and (b) a FedEx cover sheet addressed to John Pecora of J.F. White Contracting, [1] although it has since been determined that the email was never FedEx’d to WS (the FedEx documents); and (2) a draft letter to John Pecora that had pasted into it the same four page email from Vigor’s attorney (the Draft Letter). The FedEx documents and the Draft Letter have been submitted to the court under seal. It is clear that the email incorporated into both of these documents is a communication from Vigor’s attorney to Vigor in which the attorney provides legal advice concerning an early draft of the subcontract between Vigor and WS. Indeed, WS does not contend that the email does not constitute a quintessential attorney/client communication. Rather, WS argues that its disclosure was not "inadvertent" and, therefore, under M. R. Civ. P. 26(b)(5)(B) and the parties’ so-called "Clawback Agreement," it is not obligated to return the documents. For the reasons that follow, although an exceedingly close question, the court orders the documents returned.


          On November 13, 2018, Vigor discovered that it had previously produced the FedEx documents during discovery. It is not clear when that production occurred, although it was likely more than a year before this discovery. The FedEx documents were identified for review as potentially privileged. However, because they were scanned together as if a single item, it appeared that the four page attorney email had been FedEx’d to a WS representative before the subcontract was signed in 2013. For that reason, the FedEX documents were produced. Further investigation in November, 2013 revealed that the attorney email had not been included in the FedEx package. This was confirmed by the fact that WS did not have them in its files prior to their being produced in this litigation.

          As to the Draft Letter, a litigation support vendor engaged to assist in the document production failed to identify it as potentially privileged, although the name of the attorney author was a search term in the ESI review protocol and this should have caused the Draft Letter to be flagged. Nonetheless, it was not set aside for attorney review due to an error in the vendor’s processes and therefore it was produced without prior review.


          Mass. R. Civ. P. 26(b)(5)(B) and (C) were added to the Rule 26 in 2014 to address the problem of inadvertent production of attorney/client privileged documents. Inadvertent disclosure, with resulting waiver of the privilege, has been increasingly difficult to control as the volume of documents required to be produced in commercial litigation has exponentially increased and privileged materials are often "embedded in voluminous material in electronic format that has been turned over in discovery." Subsection (B) and (C) are drawn from the cognate Federal Rule of Civil Procedure and Rule 502 of the Federal Rules of Evidence. See Reporter’s Notes to 2014 Amendments. Rule 26(b)(5)(B) is referred to as a "clawback" provision. It provides that in determining whether to permit "clawback" of a privileged document produced during discovery, "the court should determine whether:

(i) the disclosure was inadvertent;
(ii) the holder of the privilege or protection took reasonable steps to prevent disclosure, and
(iii) the holder promptly took reasonable steps to rectify the error."

          The Reporter’s Notes also state that, "there is nothing in the rule that precludes the parties from modifying the procedures set forth in the rule to deal with information within the scope of a privilege or protection." Id.

          In the present case, as in many commercial litigations between sophisticated parties, the parties entered into their own "Clawback Agreement" addressing this issue. Among other things, this Clawback Agreement provides a definition for "inadvertent" which states that: production is inadvertent if a document was produced notwithstanding that the producing party "performed a reasonable search for Privileged Documents" by looking in the places where such documents could reasonably be expected to be located. There is also a further definition of "reasonable search." It means "the implementation of review methods which consist of the following: the use of keyword searches to isolate electronic documents that include the names of attorneys ...; the review by counsel of all potentially Privileged Documents identified by said keyword searches." The Clawback Agreement goes on to provide the procedures to be used once a party learns that it has produced a privileged document that it wants to ‘clawback.’

          Consistent with the suggestion in the Reporter’s Notes to the 2014 amendments the court will use the parties’ own quite ...

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