Peterson v. Bernardi
United States District Court for the District of New Jersey
262 F.R.D. 424 (2009)
After DNA evidence exonerated Larry Peterson (plaintiff) following 18 years in prison, he sued prosecutor Robert Bernardi and others (defendants) for wrongful conviction. During discovery, Peterson's counsel inadvertently produced numerous documents claimed to be protected by attorney-client privilege and work product, and Peterson moved to compel their return under Federal Rule of Civil Procedure 26(b)(5)(B), attaching a privilege log but not otherwise establishing that the documents were in fact privileged.
Whether a plaintiff who moves to compel the return of allegedly protected documents bears the burden of proving (1) that the documents are privileged under the attorney-client privilege or work-product doctrine and (2) that the requirements of Federal Rule of Evidence 502(b) are satisfied.