Thursday, December 5, 2013

Suburban Sew N’Sweep v. Swiss-Bernina case brief

Suburban Sew N’Sweep v. Swiss-Bernina case brief summary
91 F.R.D. 254 (1981)

Plaintiff retailers filed an action against defendants, manufacturer and distributor, alleging that they engaged in unlawful price discrimination and conspired to restrain trade. A magistrate judge ordered that all documents obtained by the retailers by rummaging through the distributor's garbage dumpster be returned to the distributor's counsel and not be used in the litigation. The retailers filed objections to that order with the court.

When the retailers began suspecting that the manufacturer and the distributor of goods sold in their stores were conspiring to restrain trade and engaging in price discrimination, they began to investigate those suspicions. As part of their investigation, they rummaged through the distributor's garbage dumpster for a period of two years during which they discovered numerous relevant documents including four claimed to have been protected by the attorney-client privilege. When the distributor objected to the interrogatories relating to the documents, the magistrate judge ordered that the documents be returned and not be used in the litigation.


  • The court found, however, that the numerous documents not claimed to be privileged should not have been excluded from use no matter how they were obtained. 
  • After focusing on whether the distributor and its attorney intended to keep the four allegedly privileged documents confidential, the court found that they could have destroyed the documents or rendered them illegible before throwing them away if they had intended them to be confidential. 
  • Thus, the court found that the privilege had been waived.

The court reversed the magistrate judge's order in its entirety.

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