1. By Andrew N. Plasz
How do courts in Illinois respond when a party claims that an inadvertently
produced document is still subject to the attorney-client privilege or the
work product doctrine? The law remains unsettled- here's a review.
Waiver of Privilege for Documents
Inadvertently Disclosed During Discovery
This article will analyze the law of waiver of the attorney-client privilege and
work product doctrine through inadvertent production of a document or
documents. Inadvertent production is a frequent occurrence in modem complex
litigation, particularly when large numbers of documents are at issue. Despite
the important nature of this topic, the law governing inadvertent disclosures remains
unsettled and complex.
Generally courts in Illinois follow a three-part
analysis in evaluating arguments that mistakenly
produced documents remain protected pursuant to
the attorney-client privilege.' The same analysis ap-
plies to claims that the work product doctrine ap-
plies to a mistakenly produced document.
The first step in this analysis is to determine if
the mistakenly produced documents fall within the
1. See Harmony Cold USA, Inc v FASA Corp, 169 FRD 113, 115
(ND Ill 1996); Annotation, Waiver of Evidentiary Privilege by Inad-
126 I ILLINOIS BAR JOURNAL I MARCH 2005 I VOL. 93
vertent Disclosure- Federal Law, 159 ALR Fed 153 (2000); Annota-
tion, Waiver ofEvidentiary Privilege by Inadvertent Disclosure -State
Law, 51 ALR 5th 603 (1997).
Andrew N. Plasz <aplasz@cbklaw.com> is an
associate with Crowley Barrett & Karaba, Ltd in
Chicago. His practice consists of commercial and
business litigation. He received his A.B. and J.D.
from Washington University, where he was an
associate editor of the Washington University Law
Quarterly.

2. parameters of an applicable privilege.2 If
so, the court will then determine if the
disclosure was inadvertent, as opposed
to voluntary. If it was inadvertent, the
court must then determine if the privilege
was waived in spite of the inadvertence
of the disclosure. Unless all three of these
elements are met - (1) the documents fall
within the attorney-client privilege or the
work product doctrine, (2) the disclosure
was inadvertent and not voluntary, and
(3) the privilege was not waived - the
pri;vilege will not apply to the mistakenly
produced documents.
Step one: does the attorney-client
privilege or work product doctrine
apply?
The first step in the analysis is to de-
termine if a privilege applies to the docu-
ments in question. Doing so requires
careful consideration, because courts use
several different formulations of the at-
torney-client privilege and work product
doctrine, and because both have signifi-
cant limitations.
Elements of the attorney-client privi-
lege. The classic formulation of the ele-
ments of the attorney-client privilege was
first proposed by Dean Wigmore:3 "(1)
Where legal advice of any kind is sought
(2) from a professional legal advisor in
his capacity as such, (3) the communica-
tions relating to that purpose, (4) made
in confidence (5) by the client, (6) are at
his instance permanently protected (7)
from disclosure by himself or by the legal
advisor, (8) except the protection be
waived."4
Illinois and federal courts have adopt-
ed Wigmore's definition.5 Several other
formulations of the privilege are com-
monly cited. For example, federal courts
often cite to Proposed Federal Rule of
Evidence 503(b), which defines the privi-
lege as follows:
A client has a privilege to refuse to disclose
and to prevent any other person from dis-
closing confidential communications
made for the purpose of facilitating the
rendition of professional legal services to
the client, (1) between himself or his rep-
resentative, and his lawyer and his
lawyer's representative, or (2) between his
lawyer and the lawyer's representative, or
(3) by him or his lawyer to a lawyer repre-
senting another in a matter of common in-
terest, (4) between representatives of the
client or between the client and a repre-
sentative of the client, or (5) between
lawyers representing the client!
The elements of the attorney-client privi-
lege are a matter of state law in a federal
lawsuit where the federal court's jurisdic-
tion is based on diversity of citizenship.7
Limitations. The attorney-client privi-
lege is subject to some significant limita-
tions. For example, in In Re Himme/8
the Illinois Supreme Court
held that the privilege may
elusions, opinions, or legal theories of an
attorney or other representative of a party
concerning the litigation.12
In federal cases brought pursuant to the
court's diversity jurisdiction, Rule 26,
rather than state law, governs the work
product doctrine.13
not apply if a third party is
present during a communi-
cation between a client
and his attorney, even if
that communication
would otherwise be privi-
leged but for the presence
of the third party. The
court reasoned that the
privilege could not be rec-
ognized if a third party
was present during the at-
torney-client communica-
tion unless the third party
was an agent of the client.
In determining whether disclosed
documents are protected, courts
ask (1) did they come under the
attorney-client privilege, (2) was
the disclosure inadvertent and
not voluntary, and (3) if so, is
the privilege nonetheless waived
because, e.g., the disclosure
The court, however, gave
little guidance as to when a
third party becomes an
agent of the client.9
The work product doctrine. The work
product doctrine in Illinois "protects
against disclosure of 'the theories, mental
impressions, or litigation plans of [a] par-
ty's attorney."'10 Illinois Supreme Court
Rule 201(b)(2) codifies this concept, stat-
ing that "[m]aterial prepared by or for a
party in preparation for trial is subject to
discovery only if it does not contain or
disclose the theories, mental impressions,
or litigation plans of the party's attor-
ney."11 The federal work product doc-
trine is promulgated in Rule 26(b)(3) of
the Federal Rules of Civil Procedure. Un-
der the federal rule
a party may obtain discovery of docu-
ments and tangible things otherwise dis-
coverable under subdivision (b)(l) of this
rule and prepared in anticipation of litiga-
tion or for trial by or for another party or
by or for that other party's representative
(including the other party's attorney, con-
sultant, surety, indemnitor, insurer, or
agent) only upon a showing that the party
seeking discovery has substantial need of
the materials in the preparation of the par-
ty's case and that the party is unable with-
out undue hardship to obtain the substan-
tial equivalent of the materials by other
means. ln ordering discovery of such ma-
terials when the required showing has
been made, the court shall protect against
disclosure of the mental impressions, con-
was careless?
Step two: was the disclosure
inadvertent or voluntary?
The second step in the analysis is for
the court to determine whether the dis-
closure in question was inadvertent or
voluntary. "Courts have not established a
bright-line rule for determining whether a
document was inadvertently produced;
2. For the sake of simplicity, I will refer to the at-
torney-client privilege and work product doctrine as
"privileges".
3. Ken M. Zeidner, Note, Inadvertmt Disclosure
and the Attorney-Client Privilege; Looking to the
Work-Product Doctrine for Guidance, 22 Cardozo L
Rev 1315, 1322 (2001).
4. John Henry Wigmore, 8 Evidence 2291 (Chad-
bourn rev ed 1979).
5. US v Evans, 113 F3d 1457, 1461 (7th Cir 1997);
People v Adam, 51 Ill 2d 46, 48, 280 NE2d 205, 207
(1972); Dalen v Ozite Corp, 230 Ill App 3d 18, 26,594
NE2d 1365, 1370 (2d D 1992).
6. FRE 503(b) (proposed official draft 1973), quot-
ed in Zeidner, 22 Cardozo L Rev at 1322 n 48 (cited in
note 3).
7. Urban Outfitters, Inc v DPIC Companies, Inc,
203 FRD 376, 378 (ND Ill 2001).
8. 125 Ill 2d 531, 533 NE2d 790 (1988).
9. Jeffrey A. Parness, The Presence ofFamily Mem-
bers and Others During Attorney-Client Communica-
tions: Himmel's Other Dilemma, 25 Loyola U Chi L J
481, 482 (1994); see generally People v Brown, 275 Ill
App 3d 1105, 657 NE2d 642 (1st D 1995); In re
Busse's Estate, 332 Ill App 258; 75 NE2d 36 (2d D
1947).
10. Consolidation Coal Co v Bucyrus-Erie Co, 89 Ill
2d 103, 108, 432 NE2d 250, 252 (1982), quoting Ill
SCR 201(b)(2).
11. Ill SCR 201(b)(2).
12. FRCP 26(b)(3).
13. Urban Outfitters at 379.
VOL. 93 I MARCH 2005 I ILLINOIS BAR JOURNAL I 127

3. WAIVER OF PRIVILEGE I Continued
instead, courts look at the circumstances
surrounding the disclosure."14
Courts rarely find a self-serving decla-
ration by a)itigant that its disclosure was
inadvertent to be sufficient to establish
that the disclosure was indeed inadver-
tent.15 However, at least one case indi-
cates that an affidavit stating that a dis-
closure was inadvertent may be moder-
ately more persuasive than an unsworn
statement.16
One of the most important factors is
the volume of documents produced.
would apply to the inadvertently pro-
duced document? Courts apply one of
the following three tests.
Objective analysis test. Courts adher-
ing to the objective analysis test hold that
any inadvertent disclosure waives the
privilege.22 The rationale for the objective
analysis test is that "any inadvertent dis-
closure constitutes a waiver because the
[attorney-client] privilege applies only to
confidential communications and after
disclosure the information cannot be
deemed confidential regardless of the
party's intentions"23 and
that "courts will grant no
Courts that use a balancing test to
determine whether an inadvertent
greater protection to those
who assert the privilege
than their own precau-
tions warrant."24
production waives the privilege
consider, among other things, the
reasonableness of"the precautions
taken to prevent disclosure.
The case of FDIC v
Singh25 is illustrative. The
document at issue in
Singh was a four-page
memorandum authored
by an employee of the
plaintiff. The memoran-
Courts are more likely to find disclosure
to be inadvertent in a "voluminous docu-
ment production."17How big is "volumi-
nous"? A document production of 12,000
pages was held to constitute "massive dis-
covery" sufficient to help establish inad-
vertent disclosure.18
Other factors that militate in favor of
holding a disclosure to be inadvertent in-
clude the designation of the mistakenly
disclosed documents as privileged in a
privilege log19 and the use of "numerous
intricate protective orders governing
document production" to prevent disclo-
sure.20 A disclosure is also more likely to
be deemed inadvertent where "counsel
have been scrupulous in their filings to
reflect the protective nature of the infor-
mation submitted."21 Generally, the more
steps that a litigant and his attorneys
take to prevent disclosure and protect
confidentiality, the more likely a court
will find that a disclosure was inadver-
tent.
Step three: was the
privilege waived?
If the court finds that a privilege
applies to the document and that the
disclosure was inadvertent, then it pro-
ceeds to step three: did the producing
party waive the privilege that otherwise
128 I ILLINOIS BAR JOURNAL I MARCH 2005 I VOL. 93
dum summarized a con-
versation between that
employee and the plain-
tiff's counsel and was thus protected by
the attorney-client privilege. In prepara-
tion for the disclosure of documents pur-
suant to discovery, plaintiff's counsel re-
moved all copies of the memorandum at
issue from the records made available to
counsel for the defendant.
Subsequently, however, a copy of the
memorandum was inadvertently includ-
ed in the documents produced for defen-
dant's counsel to review. Defendant's
counsel then requested a copy of the
document, which plaintiff's counsel re-
fused to provide.
The court held that the plaintiff was
required to produce the memorandum to
the defendant, reasoning that the pur-
pose of the attorney-client privilege "is to
protect the confidences of clients so they
may freely discuss their legal concerns
with counsel."26 The court stated that,
"[o]nce persons not within the ambit of
the confidential relationship have knowl-
edge of the communication, that knowl-
edge cannot be undone. One cannot 'un-
ring' a bell."27
Subjective analysis test. At the other
extreme, courts following the subjective
analysis test hold that only an intention-
al disclosure can waive the privilege.
Therefore, an inadvertent disclosure,
which by definition lacks the intent to
disclose, can never cause the waiver of
the attorney-client privilege.28 Some
courts that follow the subjective analysis
test argue that because the attorney-
client privilege belongs to the client it
cannot be waived by the negligence of an
attorney.29
Balancing test. Courts that follow the
balancing test weigh five factors in deter-
mining whether an inadvertent produc-
tion waives the privilege: "(1) The rea-
sonableness of the precautions taken to
prevent the disclosure; (2) the time taken
to rectify the error; (3) the scope of the
discovery; (4) the extent of the disclo-
sure; and (5) the overriding issue of fair-
ness."30 The balancing test is used by the
majority of courts that have addressed
this issue.31
The reasonableness of the precau-
tions. This first factor is problematic be-
cause "[i]t is difficult for a party to show
that it took reasonable precautions to
prevent production of privileged docu-
ments where those precautions obvious-
ly failed. "32
Courts have identified several factors
that may contribute to a finding that rea-
sonable precautions were not taken. One
factor is a delay in providing a privilege
log. For example, where the producing
party failed to provide the receiving par-
14. Harmony Gold at 116.
15. See, for example, Harmony Gold at 116; Gold-
en Valley Microwave Foods, Inc v Weaver Popcorn Co,
Inc, 132 FRD 204, 207 (ND lnd 1990).
16. Golden Valley at 207 ("an unsworn mea culpa is
arguably deficient to establish inadvertent disclosure").
17. Harmony Gold at 116.
18. See, for example, Parkway Gallery Furniture, Inc
v Kittinger/Pennsylvania House Group, Inc, 116 FRD
46, 51 (MD NC 1987) (12,000 documents produced
and termed as "massive" discovery); Harmony Cold at
116 (Inadvertent disclosure found where 25,000 pages
were produced); Golden Valley at 207 (Inadvertent dis-
closure found where one privileged letter was produced
in a 14,000 document production).
19. Harmony Gold at 116.
20. Golden Valley at 207.
21. !d.
22. FDIC v Singh, 140 FRD 252, 253 (D Me 1992).
23. !d.
24. In Re Sealed Case, 877 F2d 976, 980 (DC Cir
1989).
25. 140 FRD 252 (D Me 1992).
26. Id at 253.
27. !d.
28. Kansas-Nebraska Nat Cas Co v Marathon Oil
Co, 109 FRD 12, 20-21 (D Neb 1983).
29. See, for example, Bank Brussels Lambert v Cred-
it Lyonnais (Suisse) SA, 160 FRD 437 (SD NY 1985);
Mendenhall v Barber-Greene Co, 531 F Supp 951,954
(ND Ill1982).
30. Dalen at 28, 594 NE2d at 1371, quoting Cold-
en Valley at 209, citing Bud Antle, Inc v Grow Tech,
Inc, 131 FRD 179, 193 (ND Cal1990).
31. Urban Outfitters at 379.
32. Draus v Healthtrust, Inc-The Hospital Co, 172
FRD 384, 388 (SD Ind 1997).

4. ty with a privilege log until six weeks fol-
lowing the production of the documents,
thus ensuring that the receiving party
had no way of immediately identifying
any inadvertently produced privileged
materials, the court found that insuffi-
cient precautions were taken.33
Another factor is the failure of a pro-
ducing party to discover privileged docu-
ments inadvertently included in a set of
documents compiled for production even
after reviewing them.14 Similarly, volun-
tarily turning over work product to the
receiving party without extracting a
promise of confidentiality might be
deemed a failure to take reasonable pre-
cautions.35 Finally, while inclusion of a
document in a privilege log may indicate
that the disclosure was inadvertent, in
Harmony Gold USA, Inc v FASA Corp,
the court held that "a screening proce-
dure that fails to detect confidential doc-
uments that are actually listed as privi-
leged is patently inadequate."36
The time taken to rectify the error.
The second factor is the time taken by
the producing party to rectify the inad-
vertent production. Courts look to how
quickly the producing party discovered
the inadvertent production and the ac-
tions it took to correct its mistake.37
For example, where the producing
party sought to recover a document im-
mediately upon discovering it was inad-
vertently produced, but this discovery
was not until six weeks after the produc-
tion, the court reasoned that the produc-
ing party had not acted quickly enoughY
Similarly, a court weighed this factor in
favor of the receiving party where the
producing party did not ask for return
until more than six months after the
document was inadvertently produced.39
On the other hand, this factor was found
to weigh in favor of the producing party
where it requested the return of the priv-
ileged documents the day after they were
produced.4°
The scope of discovery. Under this
factor, courts consider the total number
of pages or documents produced. (This
factor overlaps somewhat with the first
balancing factor.)41 For example, where
one privileged memorandum was includ-
ed in a production of 750,000 docu-
ments, the court found that no waiver
occurred.42 On the other hand, the inad-
vertent production of a one-page memo-
randum was not excused where only
4,000 pages were produced.43
Similarly, Draus v Healthtrust, Inc-
The Hospital Co involved a small num-
ber of documents and ultimately, a waiv-
er of the privilege. In Draus the docu-
ment release involved about 2,400 pages
and the court stated that it was not "un-
reasonable to expect counsel or trained
legal assistants to eyeball each document
before producing it to opposing counsel"
in light of the small number of docu-
ments -produced.44
The extent of the disclosure. As the
court wrote in Tokar v City of Chicago,
"This factor looks to the manner in
which the document was disclosed, e.g.,
whether the discovery was formal or in-
formal and how much time that the re-
leaser had to consider the discovery re-
quest, and the amount of control that the
requester attained over the document."45
The court in Bud Antle, Inc v Grow-
tech, Inc found that there was a complete
disclosure of a privileged letter where the
receiving party's lawyer read the letter
and took notes when he first saw it.
Thereafter, the receiving party's attorney
thoroughly analyzed the privileged letter,
informed his client of its existence and its
possible legal implications, and received
a copy of it from opposing counsel. Op-
posing counsel (for the producing party)
did not assert the privilege with regard to
the letter at issue until six weeks after a
copy of the letter had finally been pro-
vided to the receiving party. 46
The court in Draus found that the ex-
tent of disclosure weighed in favor of the
receiving party where "the disclosure in-
volved only one document, but the dis-
closure of that document was utterly
complete, and it was made to the oppos-
ing party most interested in the contents
of the document."47 The Draus court
noted that it was not addressing "a case
where the inadvertent disclosure at issue
was made to a third party"48 or where
"the disclosure was minimal or construc-
tive, as when someone might glance in an
open file or designate a document for
copying before reading it."49
Other courts have noted that simply
glancing at a file or designating a docu-
33. Bud Antle at 183.
34. !d.
35. Hartford Fire Ins Co v Garvey, 109 FRD 323,
331 (ND Cal1985).
36. Harmony Gold at 117.
37. Draus at 387.
38. Bud Antle at 183.
39. Tokar v City ofChicago, 1999 WL 138814 at ''1
(ND Til 1999).
40. Draus at 388.
41. !d.
42. R.j. Reynolds Tobacco Co v Premium Tobacco
Stores, Inc, 2001 WL 1571447 (ND Ill 2001).
43. Central Die Casting and Mfg Co, Inc v Tokheim
Corp, 1994 WL444796 at *5 (ND Ill1994).
44. Draus at 388.
45. Tokar at '"2.
46. Bud Antle at 183.
47. Draus at 389.
48. !d.
49. !d.
VOL. 93 I MARCH 2005 I ILLINOIS BAR JOURNAL I 129

5. WAIVER OF PRIVILEGE I Continued
ment for copying prior to reading it or
otherwise causing the essence of the con-
tents to be disclosed may not result in the
waiver of the privilege.50
The overriding issue of fairness. The
fifth and final factor in the balancing
test is the overriding issue of fairness. In
evaluating this factor the court seeks to
analyze whether waiver of the privilege
would be a fair result for all parties in-
volved. Consequently, "when a party's
conduct reaches a certain point of disclo-
sure fairness requires that the privilege
should cease whether the party intended
that result or not."51
Scope of waiver. If it finds that a
privilege was waived, the court must ad-
dress the scope of the waiver. The issue
generally surfaces when the receiving
party contends that the producing party
waived the privilege(s) not only for the
inadvertently produced document but
for all other documents related to the
same topic. As a rule, a waiver of the at-
torney-client privilege for a given com-
munication will cause the privilege to be
waived for the entire subject matter of
that communication.52 In practice, how-
ever, judges may be reluctant to enforce
such broad waivers because of the harsh
consequences they might have for the
disclosing party.
Waiver in state court
The first Illinois state court of review
to address this issue was the second dis-
trict in Dalen v Ozite Corp.53 The Dalen
court noted that both parties to the
dispute invoked "Federal case law since
Illinois courts have been silent on the
issue."54 The court then reviewed the fed-
eral case law in great detail.
In Dalen, Mark Dalen filed suit
against the defendant, Ozite Corpora-
tion, seeking a judgment for payment of
principal and interest owed on two notes
executed by Ozite in favor of Dalen. The
trial court entered summary judgment
in favor of Dalen on both notes. Ozite
appealed. On appeal, Ozite argued that
the trial court had erred by finding that
Ozite had waived its attorney-client
privilege with respect to a memorandum
drafted by Ozite's attorney and by order-
ing Ozite to produce that memorandum
to Dalen.
During the litigation, Dalen requested
that Ozite produce certain documents.
Ozite subsequently permitted Dalen's at-
torney to review the documents that
Dalen requested at Ozite's offices. While
130 I ILLINOIS BAR JOURNAL I MARCH 2005 I VOL. 93
examining the documents, Dalen's attor-
ney examined a memorandum written by
one of Ozite's attorneys that discussed
litigation in another state related to
promissory notes similar to those at issue
in Dalen.
After Dalen's attorney examined this
memorandum, Ozite's attorneys objected
on the ground of attorney-client privilege
to providing Dalen's attorneys with a
copy. The memorandum "outlined the
limitations of Ozite's defenses and the at-
torneys' opinion as to the proper and
likely interpretation of the notes." The
trial court ruled that Ozite waived the at-
torney-client privilege and ordered Ozite
to produce the memorandum.
The court first held that because the
memorandum was not written by Ozite,
the client, but instead was written by one
of Ozite's attorneys, the attorney-client
privilege did not apply. Rather, the court
held, the work product doctrine applied
because the document was prepared in
anticipation of litigation.
The court then considered whether
Ozite had waived the work product doc-
trine by analyzing the decisions in Gold-
en Valley Microwave Foods, Inc v
Weaver Popcorn Company and In re
Consolidated Litigation Concerning In-
ternational Harvester's Disposition of
Wisconsin Steel.55 The court held that
Ozite had waived the work product doc-
trine, adopting the "balancing test" set
forth by the Golden Valley court and
stating that the "two other approaches,
the objective and subjective approaches,
would appear to result in decisions based
on mere mechanical application rather
than a judicial reason and fairness."56
The court then reasoned that "applying
the balancing test here, we note that
Ozite allowed Dalen's attorney free ac-
cess to its files after Dalen had made nu-
merous requests for documents."57
At the hearing before the trial judge,
Ozite's counsel argued that he did not
have time to purge the files of confiden-
tial material before Dalen's attorney re-
viewed them and that the disclosure of
the memorandum was therefore inadver-
tent. "Under the facts presented here, we
find that Ozite's and Ozite's counsel's
conduct was completely inconsistent
with their claim of confidentiality and
conclude that Ozite waived the protec-
tion of work product doctrine as to the
memorandum."58
The second district again addressed
the question of which waiver test to ap-
ply in People v Murry.59 In Murry, three
defendants, Erick Murry, Sherrell Wash-
ington, and Joaquin Smith, were charged
with possession of a controlled sub-
stance. The same public defender, Barton
Shaffer, represented all three at a prelim-
inary probable cause hearing. Shaffer
subsequently filed a motion to terminate
his representation of Washington and
Smith due to a potential conflict of inter-
est. Shaffer continued to represent Mur-
ry at his trial.
Washington, who pled guilty in ex-
change for probation, subsequently testi-
fied for the state at Murry's trial and was
cross-examined by Shaffer. During the
cross-examination, Washington alluded
to a conversation that she had with Shaf-
fer prior to the preliminary hearing re-
garding the facts of the case.
On appeal, Murry argued that he did
not receive effective assistance of counsel
at trial because his attorney had a con-
flict of interest due to his prior represen-
tation of Washington, who his attorney
was required to cross-examine at the tri-
al. The court held that no conflict exist-
ed, reasoning that "the attorney-client
privilege prevented the disclosure of
Washington's conversation with Shaf-
fer."60
The court then noted that "[s]everal
tests have been advanced to determine
whether the privilege has been waived."61
The court held that given the facts of the
case, the subjective analysis test should
be applied:
Under this test, we conclude that Wash-
ington did not waive the attorney-client
privilege when she started talking about
the conversation she had with Shaffer. As
50. Parkway at 51, cited in Draus at 389; Chubb In-
tegrated Systems, Ltd v Nat Bank of Washington, 103
FRD 52, 63 (D DC 1984); Ranney-Brown Distribu-
tion, Inc v E.T. Barwick Industries, Inc, 75 FRD 3, 6
(SD Ohio 1977).
51. Sylgab Steel and Wire Corp v IMOCO-Gateway
Corp, 62 FRD 454, 457 (ND Ill1974).
52. In re Cons Litigation Concerning Inti Harvester's
Disposition of Wisconsin Steel, 666 FSupp 1148, 1153
(ND Ill1987).
53. Dalen at 27, 594 NE2d at 1370; john T. Hund-
ley, "Inadvertent Waiver" of Evidentiary Privileges:
Can Reformulating the Issue Lead to More Sensible
Decisions?, 19 SIU L J 263, 278 (1995).
54. Dalen at 27, 594 NE2d at 1370.
55. 132 FRD 204 (N D Ill1990); Inti Harvester, 666
F Supp 1148.
56. Dalen at 29, 594 NE2d at 1371-2.
57. !d.
58. Id, 594 NE2d at 1372.
59. 305 lll App 3d 311, 711 NE2d 1230 (2d D
1999).
60. Id at 316,711 NE2d at 1234.
61. Id, 711 NE2d at 1235.

6. noted previously, the conversation was
first mentioned when Washington was un-
responsive to a question Shaffer posed to
her. Nothing suggests that Washington
knew she was waiving the attorney-client
privilege and intending to waive the privi-
lege. Rather, the record suggests that
Washington's statement about the conver-
sation was inadvertent.'2
Dalen and Murry, therefore, reached
different conclusions regarding which of
the three tests should be applied to deter-
mine when the attorney-client privilege
and/or work product doctrine are
waived by the inadvertent disclosure of
otherwise privileged information. Both
cases were decided by the second district,
indicating that the Illinois Appellate
Court, or at least the second district, uses
a case-by-case approach to determine
which of the three tests apply. This view
is further supported by the fact that Mur-
ry was written by Justice Bowman. Bow-
man concurred in Dalen, which was
written by Justice Inglis, who concurred
in Murry.
Waiver in federal court
Like illinois state courts, illinois-based
federal courts have not held that one of
the three tests is applicable and others
are not!3 In fact, the judges of the United
States District Court for the Northern
District of Illinois have applied all three
tests.64 However, judges in the Northern
District "increasingly rely upon a balanc-
ing test to decide on a case-by-case basis
whether the circumstances of inadvertent
disclosure warrant a finding that the
privilege has been waived."65
The seventh circuit has not ruled on
this issue either; however, it has ruled on
a related issue, and that ruling indicates
that the court would reject the objective
test.66 In Dellwood Farms, Inc v Cargill,
Inc/7 the seventh circuit addressed the is-
sue of "selective waiver." Selective waiv-
er occurs when a party intentionally dis-
closes information to one person, but at-
tempts to assert the privilege with regard
to the same information against a differ-
ent person who wants the information.68
In Dellwood, the court stated as follows:
When "waiver" is found in either type of
case, the inadvertent or the selective, it is
in order to punish the person claiming the
privilege for a mistake, rather than to pre-
vent him from changing his mind and re-
tracting a benefit that he had consciously
granted to the person from whom he
wants to retract it....But failing to be care-
ful-committing a mistake that while
careless may also be harmless-is not by
itself a compelling reason for stripping a
person of his privilege; and when we con-
sider the reasons that the courts give for
imposing such a harsh sanction for mis-
take or incaution, we find that they are in-
applicable to a case such as this....[T]he
severity of punishment for a mistake
should be proportioned to the gravity of
the mistake.""
The court in International Oil, Chemical
& Atomic Workers, Local 7-517 v The
Uno-Ven Co, stated that "[f]rom this it
may be concluded with some assurance
the Seventh Circuit would not employ
the objective approach."70 That said, at
least one judge in the northern district
has applied the objective approach.71
Conclusion
Obviously, it is best not to produce
privileged material in the first place. If,
however, privileged material is inadver-
tently produced, lawyers must confront a
shifting and complex legal landscape.
While the law is unsettled, the balanc-
ing test is the preferable alternative. Un-
like the other two tests, the balancing test
allows the court to address the unique
facts of each inadvertent production. Be-
cause it considers the steps the disclosing
party has taken to safeguard the confi-
dentiality of the information, the balanc-
ing test also provides an incentive to liti-
gants and attorneys to exercise caution. •
62. !d.
63. Inti Oil, Chem & Atomic Workers, Loca/7-517
v The Uno·Ven Co, 1998 WL 100264 (ND Ill 1998).
64. See Saner v Board of Trade of City of Chicago,
181 FRD 374, 379 (ND Ill1998) (listing cases applying
each test).
65. Urban Outfitters at 380, quoting Wsol v Fiducia-
ry Mgmt Assoc, Inc, No. 99 C 1719, 1999 WL
1129100 at *6 (ND Ill 1999).
66. Inti Oil, 1998 WL 100264.
67. 128 F3d 1122 (7th Cir 1997).
68. Id at 1127.
69. Id, also quoted in Inti Oil at *3.
70. Inti Oil at *·3. See also, R.J. Reynolds Tobacco
Co v Premium Tobacco Stores, Inc, 2001 WL 1571447
(ND Ill2001) (citing Dellwood Farms and Inti Oil with
approval).
71. Harmony Gold at 117. For an analysis of the ap-
proaches applied by other circuits, see 159 ALR Fed
153.
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