Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of August 3-9. Here’s what’s happening.
On the EDRM Blog, Michael Berman writes about the court’s decision in Fresh Air for the Eastside, Inc. v. Waste Mgt. of N.Y., LLC, which covers the discoverability of documents under the principle of subject matter waiver of work product and privileged information. The production of one privileged email in this matter would lead to major consequences for the plaintiffs.
The plaintiffs brought an environmental action against a landfill operator. Before filing suit in 2018, they hired an expert to conduct air testing. The court wrote that the expert exchanged emails with plaintiffs’ counsel during and after her testing.
In 2025, the expert wrote a report and the plaintiffs cited it in their amended complaint, first producing it with redactions, then without redactions. But the plaintiffs also produced an email sent to an attorney at a government agency that inadvertently included communications between the expert and one of the plaintiffs’ counsel.
The defendants said the expert was a fact witness and subpoenaed her. The plaintiffs asserted privilege, provided a privilege log, and withheld 115 documents. Defendants argued that the plaintiffs waived work product protection because they cited the expert and quoted her in the amended complaint and interrogatory responses.
The court reviewed in camera a sample of 29 email threads and considered Fed.R.Evid. 502(a), which says a litigant cannot selectively and unfairly disclose privileged information intentionally. Basically, a party can’t just disclose one piece of privileged information if other material regarding the same subject matter exists. The court also quoted advisory committee notes to the rule that state a “subject matter waiver is limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner.”
The court found the waiver was intentional and that the disclosed and undisclosed information related to the same subject matter — the expert’s 2018 air sampling, testing, and analysis — and ordered plaintiffs to produce all communications and documents related to the expert’s 2018 sampling, testing, and analysis.
The court also considered subsection (3): “The question remains, however, as to whether Plaintiffs may limit their waiver to their chosen scope—any waiver should exclude communications or documents that involve attorney work product and discussions of strategy—or whether fairness requires disclosure of the related materials.” The court found, after its in camera review of several of the disputed documents, “that considerations of fairness require” the defendant have access, otherwise it “would be at a disadvantage in defending themselves in this litigation due to” the plaintiffs’ actions.
The court directed the plaintiffs to review their entire privilege log related to the expert and produce all communications and documents relating to when, where, and how she conducted the 2018 sampling, testing, and related analysis, including communications with plaintiffs’ counsel if they related to the same subject matter.
By producing this one privileged email, the plaintiffs incurred additional hours and costs to conduct portions of discovery and production all over again. Experienced eDiscovery partners can help parties manage privileged information and create workflows and safeguards against disclosures that may seem inadvertent and small, but in practice are consequential and costly.
Other recent eDiscovery news and headlines:
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