In law school, we learned the old adage that bad facts often make bad law. What it means is that judges are human. When presented with compelling circumstances, or the fear that a bad guy might get away with something, judges sometimes get creative with the law. In an effort to do justice, they make rules and interpret things in ways that don’t always make sense for later cases.
That may be what happened in Mt. Hawley Insurance Company v. Felman Production Inc., 2010 WL 1990555 (S.D.W.Va., May 18, 2010). Magistrate Judge Mary E. Stanley concluded that a privileged email that was inadvertently produced did not have to be returned because the privilege had been waived. Specifically, she found that counsel failed to take reasonable steps to search the production for privileged materials prior to delivering it to the other side.
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