ALJ Bullock Grants Motion To Declare Waiver Of Privilege By Non-Party In Certain Wiper Blades (337-TA-816)
On July 24, 2012, Chief ALJ Charles E. Bullock issued the public version of Order No. 32 (dated July 12, 2012) in Certain Wiper Blades (Inv. No. 337-TA-816). In the Order, ALJ Bullock granted Complainant Robert Bosch LLC’s (“Bosch”) motion to declare that non-party Trico Products, Inc. (“Trico”) had waived attorney-client privilege and work-product protection with respect to certain documents that Trico had produced in the investigation.
According to the Order, Bosch sought a declaration that Trico had waived attorney-client privilege and work-product protection with respect to eight documents. Bosch noted that Trico had produced these documents on February 15, 2012, and had also produced the documents in two district court cases. Bosch further stated that it was not until the deposition of Trico’s corporate designee on March 13, 2012 that Trico’s counsel recalled two of the documents. Bosch further stated that Trico had then waited until May 11, 2012 to send a letter in which it attempted to recall, inter alia, the remaining documents at issue. Bosch therefore argued that (1) Trico had demonstrated a lack of care that was inconsistent with the type of inadvertence that the Commission has excused in the past; (2) Trico had not taken reasonable steps to prevent its error because it had produced the documents on three separate occasions and had not submitted a privilege log; and (3) Trico had failed to promptly rectify the error because it had waited a significant period of time before notifying the parties of its intention to claw back any documents.
Trico opposed the motion, arguing that its production of the documents had been inadvertent in part because its production was “subsequent to a review of the pre-production set.” Trico further argued that it had made reasonable efforts to prevent the disclosure of the privileged documents. Additionally, Trico argued that it had taken reasonable steps to rectify its error by recalling two documents during the deposition of its corporate designee, re-reviewing the documents it had produced, and circulating a letter to counsel detailing a complete list of the documents it intended to recall.
The Commission Investigative Staff (“OUII”) supported Bosch’s motion. OUII argued that Trico had not sufficiently explained the precautions it took to prevent disclosure or whether it had promptly taken reasonable steps to rectify its error. Accordingly, OUII concluded that under the framework of Federal Rule of Evidence 502(b) or general equitable considerations, Trico had not demonstrated that it was entitled to claim privilege as to the documents at issue.
After considering the arguments, ALJ Bullock determined to grant Bosch’s motion. The ALJ noted that while the Federal Rules of Evidence are not binding at the ITC, it was proper to look to those rules for guidance on evidentiary issues. He then found that under the standard articulated in Federal Rule of Evidence 502(b), Trico had failed to establish that it had taken reasonable steps to prevent disclosure. In particular, ALJ Bullock found that “[a] vague reference to reviewing documents for privilege, without an explanation of the methodology for review and production, is insufficient to satisfy a party’s burden of establishing that it took reasonable steps to prevent disclosure.” Accordingly, the ALJ found that Trico had waived attorney-client privilege and/or work-product protection with respect to the eight documents at issue, and granted Bosch’s motion.