WRITING SAMPLE

Matthew L. Peabody
7221 Meadow St., Apt. F
Anchorage, AK 99507
(907) 360-2332
mlpeabod@yahoo.com
 CONFIDENTIAL MEMORANDUM

TO: PROFESSOR (JUDGE) KNIGHT

FROM: MATTHEW L. PEABODY, LAW CLERK
SUBJECT: MOTION TO COMPEL (ASSIGNMENT FOR WRITING CLASS)
OPPOSED: YES NO
DATE: 4/7/2006
CASE: ALLIED FIRST V. JASON FINCH

I. Attorneys and Parties

- Deborah Volpe, for Plaintiff Allied First (“Plaintiff”)
- Jeff W. Wickes, for Plaintiff Ronald Dillingworth
- Susan L. Weidner, for Defendant Jason Finch (“Defendant”)

II. Summary of Facts

The parties to this case have been engaged in ongoing litigation of
various sorts since 2002. The current dispute concerns documents that were
inadvertently produced during proceedings in 2002.
Defendant was employed by Plaintiff as an engineer from 1990 to
2001. The underlying dispute arose after Defendant was let go from the
company and allegedly violated the non-competition agreement in his
employment contract. During the early stages of litigation in this case,
Plaintiff was ordered to produce all documents concerning Defendant’s
employment and subsequent release. This production was completed in the
summer of 2002. Plaintiff produced approximately 50,000 documents.
In December 2005, Defendant deposed a former manager of AF, a Mr.
Dillingworth. During this deposition, Mr. Dillingworth’s attorney became
aware that a privileged document had been inadvertently disclosed during
Plaintiff’s production. The attorney, Mr. Wickes, instructed Mr. Dillingworth
to not answer any questions regarding the document and asked Defendant
to return the document to Plaintiff. Defendant refused. After the deposition,
Mr. Wickes informed Plaintiff’s attorney, Ms. Volpe, about the document. Ms.
Volpe contacted Defendant’s attorney, Ms. Weidner, and demanded that the
document be returned. After some back and forth communications
regarding each side’s perceived legal rights, Defendant ultimately refused to
return the document unless court ordered to do so. Plaintiff then filed the
current motion to compel.

Relief Sought

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 Plaintiff asks the Court to order Defendant to return the privileged
document that was inadvertently disclosed.

III. Procedural Status

Filing Date
Plaintiff filed the complaint on February 24, 2002. This motion was
filed on March 14, 2006.
Scheduled Events
Oral argument has been requested and scheduled for May 21, 2006.

IV. Case Law, Rules, Statutes

A. Inadvertent Disclosure of a Privileged Document Does Not
Constitute Waiver of the Attorney-Client Privilege

In Georgetown Manor, Inc. v. Ethan Allen, Inc., the Eleventh Circuit held that
inadvertent disclosure of a privileged document by defendant's counsel does not constitute a
waiver of defendant's attorney-client privilege (“Mendenhall rule”). Georgetown Manor, Inc. v.
Ethan Allen, Inc., 753 F. Supp. 936, 939 (S.D. Fla. 1991) ("[I]nadvertent disclosure by Ethan
Allen's counsel of the transcript containing attorney-client privileged communications is not a
waiver of the protection of Ethan Allen's privilege."). The court in Georgetown based its holding
on two principles: First, the privilege belongs to the client and not the attorney, therefore, the
attorney's actions cannot extinguish the client's right, and second, inadvertent disclosure, by
definition, can never constitute a waiver.
In Georgetown, defendant's attorney and his paralegal produced thousands of documents
for the plaintiff. A transcript of a privileged conversation that had taken place between the
defendant and his attorney was inadvertently included with this production. Id. at 937. The
court reasoned that the right to the privilege belonged to the client and not the attorney. See also
Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276, 278 (Fla. Dist. Ct.
App. 1997) ("Section 90.507, Florida Statutes (1995), codifies this precept by specifying that
voluntary disclosure by the holder of the privilege will waive the privilege. The consideration
underlying this statute is the well-settled notion that the privilege is held by the client, and
protects the client."). Therefore, disclosure by the attorney, especially where the client had done
no wrong, should not waive the client's privilege. Georgetown, at 939 ("The negligence-free
client, whose privilege it is in all events, should not bear the burden of global loss of an
expectation of confidentiality because of the attorney's negligence in protecting that
confidentiality.") (citation omitted).
Furthermore, the court held that mere inadvertent disclosure could not waive the client's
privilege because a waiver requires an intentional act. By definition waiver "imports the
'intentional relinquishment or abandonment of a known right.'" Id. at 938 (quoting Mendenhall v.
Barber-Greene Co., 531 F. Supp. 951, 954 (N.D. Ill. 1982)). Inadvertent disclosure does not
amount to an intentional action and, therefore, cannot be a waiver of a known right. Abamar, at
278 ("Section 90.502(1)(c), Florida Statutes (1995), provides that an attorney-client
communication is confidential if it is not intended to be disclosed to third parties[.] . . . Hence,
one cannot be deemed to have waived a privilege upon the inadvertent production of
documents.").

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 The Eleventh Circuit has upheld the Mendenhall rule in at least two other cases. In Smith
v. Armour Pharm. Comp., outside counsel for defendant Miles inadvertently disclosed a
privileged document during production. The document was subsequently distributed to attorneys
in a separate action involving Miles and was also published in several newspapers. Smith v.
Armour Pharm. Comp., 838 F. Supp. 1573, 1575 (S.D. Fla. 1993). The court held that
inadvertent disclosure does not waive the attorney-client privilege because the holder of the
privilege had not intentionally waived the right. Id. at 1577 ("The law is clear; it is only the
client who has the power to waive the attorney-client privilege.").
In In re: Southeast Banking Corp., several errors resulted in an entire box of privileged
documents being disclosed to the plaintiff. The court found that the disclosure was inadvertent
because the defendant had taken care to protect the privileged documents and had not
intentionally disclosed them to the plaintiff. In re: Southeast Banking Corp. Securities and Loan
Loss Reserves Litigation, 212 B.R. 386, 392-3 (S.D. Fla. 1996) ("Common sense dictates that
there was not a conscious decision on the part of the FDIC to hand over the post-closing
documents to the Trustee."). Therefore, because the disclosure had been inadvertent, there was
no waiver of the privilege. Id., at 397 ("Plaintiff shall identify all post-closing documents in his
possession and return the same and all copies to the FDIC.").
In this case, Defendant asserts that the document was not inadvertently produced.1
However, the facts do not support Defendant’s argument. Plaintiff made all reasonable efforts to
protect the privilege. The document production was overseen by two associates and reviewed by
several paralegals. When the disclosure was discovered during the December 2005 deposition,
Mr. Wickes immediately re-asserted the privilege by instructing Mr. Dillingworth to not answer
any questions regarding the document. As soon as Ms. Volpe was made aware of the disclosure
she immediately requested the return of the document. Also, like the parties asserting the
privilege in Georgetown, Smith, and Southeast Banking, Plaintiff, who has the sole right to the
privilege, did not intentionally disclose the document. Like the court in Southeast Banking, this
Court should hold that these facts support a finding that the disclosure was inadvertent, not
intentional. Therefore, because the disclosure was inadvertent, the Court should grant Plaintiff's
motion to compel.
Critics of the Mendenhall rule state that it "minimizes the incentive for counsel to treat
privileged documents carefully." See, e.g., Bank Brussels Lambert v. Credit Lyonnais, 160
F.R.D. 437, 442 (S.D. N.Y. 1995). However, this reasoning ignores the fact that it is the client's
right the privilege protects, and no actions by their counsel, whether careful or not, should be
construed as a waiver of that right.

B. The Relevant Circumstances Surrounding the Inadvertent

Disclosure Support a Finding that the Privilege Was Not
Waived

In U.S. v. Pepper's Steel & Alloys, Inc., the court held that an inadvertent disclosure,
where every reasonable effort was made to protect the privilege, did not constitute a waiver of
that privilege. U.S. v. Pepper's Steel & Alloys, Inc., 742 F. Supp. 641, 645 (S.D. Fla. 1990)
("FPL [Florida Power and Lights] made every reasonable effort to protect its privilege[.] . . .
Accordingly, these documents are not admissible evidence."). To determine if every reasonable
effort had been made to protect the privilege the court adopted the “relevant circumstances” test.
1
Weidner Aff., at 3.

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 The court reasoned that the relevant circumstances test, as compared to the strict liability
rule, was a better way of determining if an inadvertent disclosure should waive the privilege.
Because "mistakes of this type are likely to occur in cases with voluminous discovery," the better
test is to determine if the disclosing party had made reasonable efforts to avoid making such a
mistake. Id., at 645.
In applying the relevant circumstances test a court must weigh five factors:

(1) The reasonableness of the precautions taken to prevent

inadvertent disclosure in view of the extent of the document
production; (2) the number of inadvertent disclosures; (3) the
extent of the disclosure; (4) any delay and measures taken to
rectify the disclosures; and (5) whether the overriding interests of
justice would be served by relieving a party of its error.

Pepper's Steel, 742 F. Supp. at 643 (citing Lois Sportswear v. Levi Strauss & Co., 104 F.R.D.
103, 105 (S.D. N.Y. 1985)).
In Pepper's Steel, the inadvertently disclosed documents were produced by FPL. FPL
used a cataloguing system to manage the privileged documents. Each document was numbered
and catalogued to help avoid inadvertent disclosure. These documents were later photocopied
and re-numbered for fear that the originals might be lost. Due to an oversight, the numbers
assigned to the copies no longer matched the originals. Because the numbered copies no longer
matched the originals, when the numbers on the copied documents were compared to the
catalogue of privileged documents, the documents did not appear to be privileged. Due to this
error, FPL inadvertently disclosed four privileged documents in a pack of 100,000 pages it
produced. As soon as FPL realized its mistake, a request was made for the return of the
documents. Id., at 643-4.
In applying these facts to the relevant circumstances test, the court concluded that FPL
had made every reasonable effort to preserve the privilege, and therefore, the privilege had not
been waived. Id., at 645. First, FPL's use of the cataloguing system indicated reasonable
precautions were taken to prevent inadvertent disclosure. Second, only four documents out of
100,000 were inadvertently disclosed. Id., at 644. Third, as soon as the mistake was discovered,
FPL did not delay and made an immediate request for the return of the documents. Lastly,
concerning the interests of justice, the court concluded that mistakes of this type are common and
hard to avoid. FPL had made every reasonable effort to prevent the disclosure. Furthermore, the
"relative prejudice to PEPPER's [sic] . . . [was] minimal, inasmuch as they [were] not entitled to
discover privileged material[.]" Id., at 645. Therefore, the court held that the inadvertent
disclosure did not result in a waiver of FPL's privilege.
In the event this Court does not adopt the Mendenhall rule, it should, in the alternative,
adopt the above stated relevant circumstances test. The Eleventh Circuit has already stated
support for this rational in FDIC v. Gonzalez-Gorrondona. FDIC v. Gonzalez-Gorrondona,
1992 U.S. Dist. LEXIS 15541, 10 (S.D. Fla. 1992) ("The courts of this district have taken two
views as to this issue. . . . [A]pply the test of Georgetown Manor . . . [or] apply the 'relevant
circumstances' test utilized by the court in United States v. Pepper's Steel[.]"). Other courts have
come to the same conclusion. See, e.g., Elkton Care Ctr. Assocs. Ltd. P'ship v. Quality Care
Mgmt., Inc., 805 A.2d 1177, 1184 (Md. Ct. Spec. App. 2002); Amgen Inc. v. Hoechst Marion
Roussel, Inc. and Transkaryotic Therapies, Inc., 190 F.R.D. 287, 292 (Dis. Crt. Mass. 2000);

5
Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276, 279 (Fla. Dist. Ct.
App. 1997). The Restatement Governing Lawyers also supports adoption of the relevant
circumstances test. Restatement (Third) of the Law Governing Lawyers § 79 (2000) ("Waiver
does not result if the client or other disclosing person took precautions reasonable in the
circumstances to guard against . . . [inadvertent] disclosure.").
Applying the facts of the current case to the relevant circumstances test, this Court should
hold that the inadvertent disclosure did not waive Plaintiff’s privilege. First, Plaintiff took
reasonable steps to prevent the disclosure by having two associates, in conjunction with a team
of paralegals, review the documents and label the privileged ones. U.S. ex rel Bagley v. TRW,
Inc., 204 F.R.D. 170, 180 (C.D. Cal. 2001) (discussing that reasonable precautions were shown
by having an attorney oversee the work of non-lawyer personnel and by labeling the documents
as privileged).
Second, the number and extent of the disclosure in this case was very minimal compared
to the overall document production. Plaintiff inadvertently disclosed one privileged letter out of
a total production of approximately 50,000 documents. See Briggs & Stratton Corp. v. Concrete
Sales & Servs., 176 F.R.D. 695, 699 (M.D. Ga. 1997) (holding that even though there were 112
privileged documents disclosed among a total production of only 2600 documents, this still did
not support a waiver).
Also, Plaintiff did not delay in trying to rectify the disclosure. As soon as the disclosure
was realized at the December 2005 deposition, Plaintiff sought to maintain the privilege by
instructing Mr. Dillingworth to not answer any questions regarding the document.2 Again, as
soon as was possible, Ms. Volpe was informed of the document's disclosure and the very same
day she faxed a letter requesting the return of the document.3
Under the last prong of the test, Defendant may argue that the document is an integral
part of his case and therefore, it would be unjust for the Court to withhold it from him. However,
the New York District Court has held that where a defendant cannot show that he or she will be
prejudiced by having to return the document, return of the document will not be overly unfair.

The defendants do contend that the Coudert Letter is a "smoking

gun" that demonstrates the invalidity of certain of the plaintiffs'
claims. But the relevance of a privileged document to the merits of
the litigation does not make it unjust to withhold it from discovery.
The prejudice factor focuses only on whether the act of restoring
immunity to an inadvertently disclosed document would be unfair,
not whether the privilege itself deprives parties of pertinent
information. By these terms, there is no unfairness in precluding
the defendants from using the documents at issue.

Lambert, 160 F.R.D. at 446. Also, because the document was clearly marked privileged,
Defendant should have realized the letter would need to be returned and this fact should have
prompted them to not rely on the document. See Abamar Hous., 698 So.2d at 279 ("[O]ver-
riding fairness considerations weigh in favor of prohibiting respondents' use of inadvertently
received privileged documents. Respondents could not have been oblivious to the privileged
nature of the documents since some of them . . . are, in fact, marked as 'confidential.'").

2
Volpe Aff., at 5.
3
Id., at 6.

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 In light of these facts, under the relevant circumstances test, this Court should find that
Plaintiff exercised all reasonable precautions to avoid the disclosure and did not engage in any
activity that might show an intent to abandon the privilege. Therefore, the Court should grant the
Plaintiff's motion to compel.

C. The Strict Liability Rule Ignores Both an Attorney’s Ethical

Responsibilities and the Importance of the Attorney-Client
Privilege

1. Automatic waiver substantially impairs the protections

offered by the attorney-client privilege and ignores the
reality of modern production

In In re Sealed Case, the court held that any disclosure, whether inadvertent or voluntary,
would result in waiver of the attorney-client privilege. In re Sealed Case, 877 F.2d 976, 980
(D.C. Cir. 1989) (“We . . . agree with those courts which have held that the privilege is lost
“even if the disclosure is inadvertent.”’) (quoting In re Grand-Jury Proceedings, 727 F.2d 1352,
1356 (4th Cir. 1984)). Prior to the action in question, the appellant in Sealed Case had produced
one privileged document to the Defense Contract Audit Agency during a routine audit.
Furthermore, appellant’s vice-president subsequently released a total of six privileged documents
to the government. Id., at 977-8. These two actions, under the strict liability rule, subsequently
resulted in an automatic waiver of the privilege when the same documents were later
inadvertently produced. Id., at 980 ("[T]he confidentiality of communications covered by the
privilege must be jealously guarded by the holder of the privilege lest it be waived. The courts
will grant no greater protection to those who assert the privilege than their own precautions
warrant.").
The court reasoned that holding a party responsible for an inadvertent disclosure would
force the party to limit their use of the privilege. Id., at 980 ("To hold that an inadvertent
disclosure will waive the privilege imposes a self-governing restraint on the freedom with which
organizations label documents as privileged."). Holding a party responsible for inadvertent
disclosures encourages them to closely guard the privilege and use it sparingly. The more
sparingly the privilege is used, the fewer privileged documents exist, and the greater the ability
to prevent any inadvertent disclosure. The court concluded that if the disclosing party is not held
responsible for their oversight "there is a temptation to seek artificially to expand the content of
privileged matter" by labeling even unprivileged documents as privileged. Id., at 980.
The court in Draus v. Healthtrust, Inc. also held that an inadvertent disclosure resulted in
an automatic waiver of the privilege. The court reasoned that the damage of the disclosure had
already been done and the court could not now repair that damage by reinforcing the privilege.
Draus v. Healthtrust, Inc., 172 F.R.D. 384, 389 (S.D. Ind. 1997) ("The disclosure of the
Dickerson letter is a bell that has already been rung. The court cannot unring it by ordering that
copies be returned to defendants.") (citation omitted). However, the Eleventh Circuit has
disagreed with this line of reasoning, holding that the better approach is to hold that the privilege
is so important that it should and must be enforced. Smith, 838 F. Supp. at 1576 ("Although

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confidentiality can never be restored to a document already disclosed, a court can repair much of
the damage done by disclosure by preventing or restricting use of the document at trial.")
(citation omitted).
Several courts have reasoned that the strict liability rule, by holding that inadvertent
disclosure automatically waives the privilege, could discourage clients from being completely
open and honest with their attorneys and damage the attorney-client relationship upon which our
judicial system relies. See, e.g., Amgen Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. 287,
292 (D. Mass. 2000) ("[T]he strict accountability rule . . . diminishes the attorney-client
relationship[.]"); Gonzalez-Gorrondona, 1992 U.S. Dist. LEXIS at 6 ("The purpose of the
attorney-client privilege is 'to encourage full and frank communication between attorneys and
their clients and thereby promote broader public interest in the observance of law and
administration of justice.'") (citation omitted). The strict liability rule also ignores the fact that it
is the client's right to assert the privilege and, therefore, only the client may waive that right.
Corey v. Norman, 1997 Me. Super. LEXIS 231, 13 (1997) ("One ought not assume the waiver of
such a significant right without knowing and intelligent action on the part of the client.").
In modern day document production, where often thousands of documents are produced,
it is an accepted fact that mistakes will happen. See, e.g., Corey, 1997 Me. Super. LEXIS at 14-
5; Amgen, 190 F.R.D. at 290. Application of the strict liability rule may discourage attorneys
from participating in open production and further hamper the interests of justice. TRW, 204
F.R.D. at 177 ("Where document production is extensive a finding that an inadvertent disclosure
of privileged documents waives the attorney-client privilege does not advance the aim of full and
free discovery. Parties might tend to produce fewer documents or delay production for fear of
losing protection for otherwise valid privilege claims.") (citation omitted).
In Sealed Case, the court placed great weight on the fact that the documents in question
had been previously disclosed to other parties. Unlike the disclosing party in Sealed Case,
Plaintiff has not previously disclosed the privileged document to anyone. In contrast, Plaintiff,
since learning of the disclosure, has repeatedly and steadfastly asserted the privilege and
demanded the return of the document. It is clear there was never any intent to disclose this
document to any party, let alone to the Defendant.
For the above reasons, this Court should reject the strict liability rule and refuse to apply
it to this case. Adoption of this rule ignores the importance of the attorney-client relationship
and the size and complexity of modern day production. By curtailing this relationship and the
openness of production, the inflexibility of this rule could also impair the efficiency of our
judicial system.

2. The strict liability rule is inapposite to the professional

ethics that dictate how an attorney should handle
privileged information

The Florida Bar has stated, "[a]n attorney who receives confidential documents of an
adversary as a result of an inadvertent release is ethically obligated to promptly notify the sender
of the attorney's receipt of the documents." Florida Bar Professional Ethics § 93-3 (2003).
Likewise, in a formal opinion discussing inadvertent disclosure, the American Bar Association
determined,

8
 A lawyer who receives materials that on their face appear to be
subject to the attorney-client privilege or otherwise confidential,
under circumstances where it is clear they were not intended for
the receiving lawyer, should refrain from examining the materials,
notify the sending lawyer and abide the instructions of the lawyer
who sent them.

Corey, 1997 Me. Super. LEXIS at 5 (citing ABA Comm. On Ethics and Professional
Responsibility, Formal Op. 92-368 (1992)).
The strict liability rule encourages attorneys to avoid these ethical requirements. Because
the strict liability rule automatically treats the disclosure of the document as a waiver, the
receiving attorney is free to use the document. The attorney may feel this removes the obligation
to contact the opposing party and notify them of the error. This results in the receiving attorney
having no ethical responsibility concerning the inadvertent disclosure. At least one court has
determined that attorneys should be encouraged to follow their ethical responsibilities. TRW,
204 F.R.D. at 183 ("[W]hen inadvertent disclosure of obviously privileged materials is made to
opposing counsel, it seems appropriate, given the importance of the policies promoted by the
attorney-client privilege, to shift some of the responsibility for promoting the policies of the
privilege to the lawyer who received the inadvertent disclosure."). The court in TRW went on to
conclude, "[b]ecause some mistakes are inevitable, the receiving party sometimes is in the best
position to avoid the societal costs of a waiver." Id., 204 F.R.D. at 183.
Ms. Weidner claims that he is not bound by the ethics of the Florida Bar because he is not
a member. But it has been held that an attorney, who has been admitted pro hac vice, must
conduct himself or herself in a manner that is consistent with the rules and ethics of that court.
See Southeast Banking, 212 B.R. at 398.

V. Conclusion
The attorney-client privilege is an integral part of our judicial system and is an important
client right. Plaintiff did not intentionally disclose the privileged document and reasonable steps
were taken to avoid the disclosure. For these reasons, Plaintiff's privilege deserves to be
protected and enforced and this Court should find in favor of the Plaintiff under the Mendenhall
rule, or alternatively, the relevant circumstances test.

VI. Recommendation
Your Honor should GRANT Plaintiff’s motion to compel the return of the inadvertently
disclosed document.