MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

In this action, Plaintiff Christina Conyers Williams ("Williams") claims that Defendant the District of Columbia (the "District") retaliated against her in violation of the District of Columbia Whistleblower Protection Act, D.C. CODE § 1-615.01 et seq., for testimony that she provided before the District of Columbia Council. The action is currently in the pretrial stage of litigation and there is now a single motion before the Court: the District's [135] Renewed Motion to Exclude Plaintiffs Exhibit 9A ("Motion to Exclude"), through which the District seeks to preclude Williams from using a purportedly privileged communication at trial on the basis that it was inadvertently produced in discovery. For the reasons set forth below, upon consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court will deny the District's Motion to Exclude.

I. BACKGROUND

On or about June 27, 2008, the District responded to Williams's first set of document requests. See Def.'s Resps. to Pl.'s First Set of Req. for Produc. of Docs. ("Def.'s Resps."), ECF No. [136-1]. Included with the District's response was what it described as a "recommendation to terminate packet," id. at 3, which consisted of approximately 104 pages of documents pertaining to the termination of Williams's employment with the District, see Mem. of. P. & A. in Supp. of the District's Renewed Mot. to Exclude Pl.'s Exhibit 9A ("Def.'s Mem."), ECF No. [135], at 4; Pl.'s Opp'n to Def.'s Mot. to Exclude Pl.'s Trial Exhibit 9A ("Pl.'s Opp'n"), ECF No. [136], at 3. Within the first ten pages1 of the packet was a two-page e-mail communication involving the then-Deputy General Counsel for the District's Department of Health, discussing certain matters relating to Williams's proposed termination.2

Subsequently, the District realized that it had produced the communication and sought its return.3 On November 22, 2008, the District wrote Williams as follows:

Ltr. From L. Valdes, Esq. to J. Karl, Esq. dated Nov. 22, 2008, ECF No. [135-1], at 1. It is undisputed that Williams never responded to the notice, favorably or unfavorably. It is similarly undisputed that the District never followed up on its letter—for example, it never asked whether Williams had destroyed or sequestered the communication when it was not "return[ed]. . . at once" as the District had requested. Id. Neither party promptly brought the matter to the Court's attention; in fact, in the succeeding two years and eight months, the parties proceeded as if nothing had happened at all. Nor was it for a lack of opportunity: discovery did not close until January 31, 2009; in January and February 2009, the parties filed a series of discovery-related motions, see, e.g., Def.'s Mot. to Quash 30(b)(6) Dep., ECF No. [48]; Def.'s Mot. to Quash on Behalf of Tori Whitney, ECF No. [49]; in July 2009, the parties cross-moved for summary judgment, see Def.'s Mot. for Summ. J., ECF No. [68]; Pl.'s Mot. for Partial Summ. J., ECF No. [72]; and, in July 2010, the parties filed a round of motions in limine, see, e.g., Def.'s Mots, in Limine, ECF No. [92]. At no point during these extensive proceedings did the parties bring the matter to the Court's attention.

The matter was revived when the parties began preparing in earnest for the trial in this action. In or about July 2011, the parties exchanged revised proposed exhibit lists. Williams's exhibit list identified her "Exhibit 9A" as "Johnson email re Williams," which the parties agree is a reference to the purportedly privileged communication at issue.4 See Pl.'s Revised Exhibit List, ECF No. [130-1], at 2. On July 20, 2011, the District filed a[133] Motion to Exclude Plaintiff's Exhibit 9A.

During a Status Hearing on July 22, 2011, the Court expressed a number of concerns with the District's motion as it was then framed, indicated that the motion would be denied without prejudice, and granted the District leave to file a renewed motion addressing the Court's concerns. See Order (July 25, 2011), ECF No. [134], at 10, 13. The Court set an appropriate briefing schedule and the parties were directed to address, inter alia:

Id. at 10. In accordance with the briefing schedule set by the Court, the District filed the pending Motion to Exclude on July 27, 2011. See Def.'s Mem. After reviewing the District's papers, the Court further instructed the parties as follows:

Min. Order (July 28, 2011) (emphasis altered). Williams filed her opposition on August 3, 2011. See Pl.'s Opp'n. The District filed its reply on August 8, 2011. See Reply to Pl.'s Opp'n to the District's Renewed Mot. to Exclude Pl.'s Exhibit 9A ("Def.'s Reply"), ECF No. [138].

II. LEGAL STANDARD

In this Circuit, it used to be the case that virtually any disclosure of a communication protected by the attorney-client privilege, even if inadvertent, worked a waiver of the privilege. See In re Sealed Case, 877 F.2d 976, 980 (D.C.Cir. 1989); Elliott v. Fed. Bureau of Prisons, 521 F.Supp.2d 41, 58 (D.D.C.2007). However, Congress partially abrogated this relatively strict approach to waiver by enacting Rule 502(b) of the Federal Rules of Evidence,5 which addresses the extent to which a waiver may be found based upon an inadvertent disclosure in a federal proceeding. Specifically, Rule 502(b) provides:

FED.R.EVID. 502(b). The party claiming that its disclosure was inadvertent bears the burden of proving that each of the three elements of Rule 502(b) has been met. Amobi v. D.C. Dep't of Corrections, 262 F.R.D. 45, 53 (D.D.C.2009); Peterson v. Bernardi, 262 F.R.D. 424, 427 (D.N.J. 2009). Even if the document at issue is privileged and inadvertently disclosed, if the "disclosure is not excused by the application of Rule 502, then the privilege protecting it from production is gone." Amobi, 262 F.R.D. at 51.

III. DISCUSSION

The Court's discussion here proceeds in two parts. First, the Court will explain why the District has failed to show that it "took reasonable steps to prevent disclosure." FED.R.EVID. 502(b)(2). Thereafter, the Court will explain why the District has failed to show that it "promptly took reasonable steps to rectify the error." Fed. R.Evid. 502(b)(3). Whether considered together or independently, these twin failures preclude the District from invoking the protections of Rule 502(b) to avoid a finding that it has waived any privilege that might have attached to the communication at issue based upon its disclosure to Williams in discovery.6

A. The District Has Failed to Show That It Took Reasonable Steps To Prevent Inadvertent Disclosure

Notwithstanding the easing of the waiver doctrine brought about by the enactment of Rule 502(b), the Rule "does not remove the parties' responsibility to take reasonable precautions against [the] disclosure of privileged documents." Amobi, 262 F.R.D. at 51. In order to invoke the protections of Rule 502(b), the holder of the privilege bears the burden of establishing that it "took reasonable steps to prevent disclosure" in the first place. FED.R.EVID. 502(b)(2). In this regard, the District's showing is woefully deficient.

As a threshold matter, the District relies exclusively on the unsworn averments of its counsel, who is almost certain to lack personal knowledge of the circumstances that surrounded the District's review and production of the communication at issue because she was yet to be assigned to this matter. See Def.'s Mem. at 2; Def.'s Reply at 3. The District has failed to support its arguments with an affidavit or declaration from its prior counsel or the paralegal who is claimed to have reviewed the documents. This failure is both inexplicable and unacceptable and constitutes sufficient grounds to deny the District's motion outright. Nonetheless, even crediting the unsupported statements by the District's counsel, those statements fall far short of establishing that the District took reasonable steps to prevent the disclosure in the first place.

First, and most importantly, the District has utterly failed to explain its "methodology" for review and production. Amobi, 262 F.R.D. at 54. The District explains only that "[p]rior to production, this material was reviewed by an experienced litigation paralegal under the supervision of an attorney." Def.'s Mem. at 4. It should go without saying that this sort of conclusory statement is patently insufficient to establish that a party has discharged its duty of taking "reasonable steps" to guard against the disclosure of privileged documents. See Peterson, 262 F.R.D. at 429 (refusing to "accept plaintiffs bare allegation that he conducted a `privilege review' as conclusive proof that he took reasonable steps to prevent an inadvertent production."). Indeed, were courts to accept conclusory statements of this kind, it is difficult to imagine circumstances when Rule 502(b) would not apply so long as the disclosing party conducted any privilege review, no matter how cursory or unreasonable. In this case, the District does not indicate when its review occurred, how much time it allocated to the review of documents, the nature of the reviewer's experience, the extent of the alleged supervision of an attorney, whether it conducted multiple rounds of review, how it segregated privileged documents from non-privileged documents, and other basic details of the review process. The general statement that a privilege review was performed, without any supporting details, is completely uninformative.7

Second, the District has failed to provide a concrete sense of the total number of documents that it reviewed and produced. The parties agree that the "recommendation to terminate" packet that was produced to Williams consisted of slightly over a hundred pages—a relatively de minimis production—and the District does not contest Williams's assertion that the two-page e-mail communication at issue here appeared within the first ten pages of the packet. Beyond this, the District claims that "[s]ix other sets of document [sic] were also produced to [Williams] that day," Def.'s Mem. at 4, but the District fails to provide any further details of the scope of the overall production. So far as the Court is concerned, these additional documents could have consisted of eight pages, eighty pages, eight-hundred pages, or eight-thousand pages. The District's assertions are hopelessly generic, reducing to the unilluminating contention that the communication at issue was part of "a larger production" that ranged somewhere between one-hundred pages and infinity. Def.'s Mem. at 4. The District has provided no factual basis for the Court to conclude, as the District suggests, that the error was "reasonable given the size of the production." Id. Indeed, based on the record created by the District, the Court can only conclude that the overall size of the production was de minimis.

Third, the District offers no clear picture of the demands placed upon it by virtue of Williams's document requests and the timetable of production. Altogether absent from the District's moving papers is any sense of how many documents it reviewed relative to its overall production, the complexity of the review required, and the time it had to gather, review, and produce responsive documents. This leaves important questions unanswered. Since the total size of the District's production appears to have been small, the Court cannot assume that Williams's demands were particularly onerous or burdensome. Since it appears that the records were all produced in hard copy format, the Court cannot assume that the District was required to sort through a significant amount of electronically stored information. Since Williams's assertion that the District failed to produce any privilege log is left uncontested by the District, see Pl.'s Opp'n at 1, the Court cannot assume that the District was required to expend significant time and resources on an exhaustive privilege review. At bottom, the only thing that the Court can assume is that Williams served document requests on the District and that the District had at least thirty days to respond to those requests. See FED.R.CIV.P. 34(b)(2)(A).

The Court does not intend to suggest a party seeking to invoke the protections of Rule 502(b) must always address all, or even necessarily most, of the considerations described above in order to secure relief. However, these are the sort of considerations that one would expect to be relevant, and not one is addressed with any meaningful measure of detail in the District's moving papers. The District bears the burden of establishing a factual basis for this Court to conclude that it "took reasonable steps to prevent disclosure." FED.R.EVID. 502(b)(2). In the final analysis, the District's showing is so cursory and incomplete that there simply is no foundation for this Court to evaluate the reasonableness of the precautions taken to guard against inadvertent disclosure. Because the holder of the privilege bears the burden of establishing that it "took reasonable steps to prevent disclosure," FED. R.EVID. 502(b)(2), and because the District has failed to discharge that burden, the Court will deny the District's Motion to Exclude on this basis.

B. The District Has Failed To Establish That It Took Reasonable Steps To Rectify the Error Once Discovered

Even where the holder of the privilege can show that it took reasonable precautions to guard against disclosure, the holder bears the further burden of showing that it "promptly took reasonable steps to rectify the error" once discovered. Fed.R.Evid. 502(b)(3). In this case, the District has taken the position that all it was required to do was to notify Williams of the inadvertent disclosure and to request the return of the communication in accordance with Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure. See Def.'s Mem. at 5; Def.'s Reply at 1-2. That Rule provides, in relevant part:

FED.R.CIV.P. 26(b)(5)(B).8 Notably, even though the Court expressly instructed the District to support its argument that compliance with Rule 26(b)(5)(B) is sufficient to discharge its obligation under Rule 502(b) to "promptly take reasonable steps to rectify the error," the District cites to no authority in support of its position. The Court can only assume that there is none.

The Court does not doubt that there will be circumstances where a party's compliance with Rule 26(b)(5)(B) will constitute "reasonable steps to rectify the error," Fed.R.Evid. 502(b), but this is not such a case. Here, the District notified Williams of its error in a letter dated November 22, 2008, requesting that the communication be "return[ed] . . . at once." Ltr. From L. Valdes, Esq. to J. Karl, Esq. dated Nov. 22, 2008 at 1. When Williams did not promptly return the communication or otherwise respond to the District's letter, the District was on notice that further action was required. Nonetheless, the District waited approximately two years and eight months before it filed a motion seeking the Court's intervention. Cf. Amobi, 262 F.R.D. at 54 (noting that characterizing attempts to rectify the error 55 days after discovery as a "prompt effort" was a "debatable proposition"). Which is not to say that the District was required to seek the Court's intervention immediately on the heels of its letter to Williams. In appropriate circumstances, a producing party may be justified in waiting a reasonable period of time to see if the receiving party will "sequester" the document and "present the information to the court under seal for a determination of the claim." FED.R.CIV.P. 26(b)(5)(B). Alternatively, a producing party may, and in fact should, attempt to meet-and-confer with the receiving party in a good faith attempt to resolve the dispute and obviate the need for the district court's intervention. Here, the District took no further action, electing instead to wait years while a privileged communication remained in the hands of a third-party to the communication. This sort of indifference is fundamentally at odds with the principle that the attorney-client privilege "must be jealously guarded by the holder of the privilege lest it be waived." In re Sealed Case, 877 F.2d at 980.9

Under these unique circumstances, the District's mere compliance with Rule 26(b)(5)(B), without more, did not constitute "reasonable steps to rectify the error." FED.R.EVID. 502(b); see also Luna Gaming-San Diego, LLC v. Dorsey & Whitney, LLP, 2010 WL 275083, at *6 (S.D.Cal. Jan. 13, 2010) (concluding that the producing party could not invoke Rule 502(b) where it failed to follow up with opposing counsel to obtain the return of the documents at issue and failed to petition the court for relief). Accordingly, the Court will deny the District's Motion to Exclude on this separate, independent basis.

IV. CONCLUSION

For the reasons set forth above, the Court will deny the District's Motion to Exclude. The Court finds that there is no injustice to denying the District the protections of Rule 502(b). Here, "the only `injustice' in this matter is that done by defendant[t] to [itself]." Amobi, 262 F.R.D. at 55 (some internal quotation marks and notations omitted). The District's failure to make reasonable efforts to guard against the disclosure in the first place and to rectify its error once discovered is fatal to its reliance on Rule 502(b). However, because it is not clear from the present record, the Court will require Williams to file a Notice with the Court explaining in detail (a) how the communication is admissible and (b) how she actually intends to use it at trial. An appropriate Order accompanies this Memorandum Opinion.