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By: Daphne Drescher, CP

Reprinted with permission from Proparalegal: www.proparalegal.com.

Opposing counsel is accidentally copied on a confidential email to the client. (Darn that address auto-complete! NOTE: Turn. It. Off.)

Or privileged emails have accidentally been included in a document production.

These unhappy events are feared by us all, yet are becoming increasingly difficult to avoid in light of the exponential increase in email communications and vast volumes of ESI to be produced.

What happens in the event of an accidental disclosure of confidential documents? Has privilege been waived? Can opposing counsel use the confidential information?

It depends!

There are two related but separate issues here.

Ethical Duty

First is the issue of a lawyer’s ethical duty (and her staff’s duty) upon receiving privileged information she’s pretty sure was disclosed by accident. Here a lawyer is faced with conflicting ethical duties: the duty to respect the attorney-client privilege vs. the duties to vigorously represent her client and to keep the client fully informed.

ABA Model Rule 4.4(b) and Comment [2] make clear that any lawyer receiving inadvertently disclosed confidential or privileged information has a duty to promptly notify the sender.

However as ABA Formal Opinion 05-437 makes clear, questions about whether the receiving lawyer has additional duties such as refraining from reading or using the material, or about whether the disclosure waives privilege, are matters of law to be decided by statutes or the courts.

Many states have reiterated in their own Ethics Opinions or laws that lawyers receiving inadvertently produced privileged information must notify the producing lawyer. However jurisdictions vary as to whether the receiving lawyer may ethically use the inadvertently disclosed information in his trial strategy, and whether he may reveal the disclosure to his client.

For example, in California not only does an inadvertent disclosure of privileged information not result in an immediate waiver of privilege (see Cal. Evid. Code §912), but case law places additional duties upon the recipient. If a lawyer receives materials that appear to be privileged, and also appear to have been disclosed inadvertently, not only does she have a duty to notify the disclosing party, but she also has a duty to “refrain from examining the materials any more than is essential to ascertain if the materials are privileged.” State Compensation Ins. Fund v. WPS, Inc., 70 Cal.App.4th 644, 656-7 (1999); see also Clark v. Superior Court, 196 Cal.App.4th 37 (2011).

Statutory Requirements

Privilege Waiver. Federal law addresses the prospect of confidential information inadvertently disclosed. In a revision enacted in 2008 and intended to resolve disputes among the courts regarding waiver of privilege resulting from inadvertent disclosure, Fed. R. Evid. 502(b) clarifies the circumstances in which an inadvertent disclosure does or does not waive privilege.

The rule states that 1) when the disclosure was inadvertent, 2) the party claiming privilege took reasonable steps to prevent disclosure, and 3) the party claiming privilege took reasonable steps to correct the error after disclosure occurred, then privilege is not waived.

Further, F.R.C.P. 26(b)(5)(B) states that if privileged information is produced, the party claiming privilege may notify the recipients of the basis for the privilege claim, upon which the receiving party must promptly return, sequester or destroy the specified privileged information and any copies in its possession, and is not allowed to use of disclose the information until the claim is resolved.

In practice, this generally means as long as the producing party can show it didn’t intend to disclose the privileged information, notified the receiving parties of the error, and had taken steps, however unsuccessful, to guard against the disclosure, privilege won’t be waived and the receiving party won’t be able to make use of the privileged information in the lawsuit.

Of course, courts differ in their interpretation of what constitutes “reasonable steps” to prevent disclosure or to provide prompt notice. There have certainly been instances where a court ruled that privilege had been waived due to delay in notification of a disclosure, or due to inadequate privilege review.

What Should We Do?

  • Know your state’s ethical guidelines, and your state or federal jurisdiction’s statutes or case law on the subject.
  • Do everything in your power to assure privilege review procedures are in place and are as thorough as practicable. Make every effort to prevent any privileged documents from slipping out of the office.
  • The moment you learn privileged information may have been disclosed in any manner, inform your supervising attorney.
  • Most likely opposing counsel will need to be notified immediately. The speed with which this is done may impact whether privilege is waived.
  • Your attorney will want to try to negotiate the handling of the disclosure with opposing counsel.

What about you? Do you have your own inadvertent disclosure war stories?

Daphne is a virtual litigation paralegal and owner of California-based Drescher ProParalegal. She is also an instructor in the Paralegal Degree Program at Empire College. For more information, visit Daphne’s website http://proparalegal.com where you can subscribe to the free Drescher ProParalegal Newsletter full of litigation practice tips and resources for legal support staff.

©2011 Drescher ProParalegal. All rights reserved.

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Have an absolutely fantastic day inside the legal gates of glory, TPS readers! Sip, sip, and zip, zip – right on into the crazy abyss – you go.

Happy trails. We’ll see you soon!