Friday, December 20, 2013

Peterson v. Bernardi case brief

Peterson v. Bernardi case brief summary
262 F.R.D. 424 (2009)

Plaintiff filed an action against defendants alleging that he was wrongfully imprisoned for over 18 years based on a false conviction for murder and rape, and discovery ensued. Plaintiff filed a motion to compel return of documents that plaintiff alleged were inadvertently produced, pursuant to Fed. R. Civ. P. 26(b)(5)(B). Defendants opposed the motion, and the court reviewed the documents in camera.

Plaintiff filed his lawsuit claiming that his conviction was based on defendants' wrongful conduct. The charges against plaintiff were dropped after DNA sample results did not match plaintiff's DNA profile. Plaintiff filed his motion for the return of documents after plaintiff discovered that he inadvertently produced allegedly privileged and irrelevant documents.


  • Except as to one category of documents, the court found that plaintiff had not satisfied the threshold burden of showing, as required under Fed. R. Evid. 502, that plaintiff was attempting to protect privileged documents. 
  • Because the documents were not privileged, an analysis under Fed. R. Evid. 502(b) was not necessary. 
  • Even if the documents were privileged, plaintiff had not shown that the documents were inadvertently produced within the meaning of Fed. R. Evid. 502(b)(1) and plaintiff had not shown that he took reasonable steps to prevent disclosure within the meaning of Fed. R. Evid. 502(b)(2). 
  • The court found that nine pages, showing litigation strategy and work product, should remain privileged because they were obviously work produce and no extrinsic evidence was necessary to show work product.
The court granted plaintiff's motion to compel the return of produced documents to the extent that nine pages of documents were clearly work product. The court denied the motion to compel return with respect to the remaining documents.

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