There is a distinct moment when an attorney realizes that he or she just received documents that were not meant to be disclosed. During this brief initial period of realization, attorneys must quickly decide whether to listen to the angel or the devil whispering in their ear. The red-suited individual perched upon your shoulder says, “Read the entire thing, this could be the key to unlocking victory.” On the other side, the halo-donning counselor says, “Stop reading that thing immediately and inform opposing counsel of the inadvertent disclosure of privileged information.”
How to Respond to an Inadvertent Disclosure of Privileged Information
While jurisdictions differ on whether or not this type of disclosure is considered a waiver of attorney-client or work product privilege, the following steps should be followed if documents that you believe may be privileged are inadvertently sent to you.
- Stop reading the documents immediately.
- Draft a memorandum describing the facts revealed to you and briefly describe without looking at the detailed contents of the documents. Sequester and secure the documents and memorialize them.
- Draft a letter to the sending attorney giving notice of the revelation, demanding an immediate response regarding any claim of privilege, with a description of the required privilege log.
- Do not waive the right to demand that the documents be produced, and do not concede the privilege claim.
- Inform the sending attorney that you are submitting the material to the court, under seal, and requesting that the court rule on it at a hearing unless the defendant waives the privilege before then.
- Draft and send a pleading notifying the court of the documents, filing them under seal.
If this is done promptly after receipt of the documents, any foul play involving the matter can be diverted. However, the longer you wait to inform the other side and the further you read into the inadvertent disclosed document, the more likely sanctions will be levied upon you.
Is the Inadvertent Disclosure a Waiver?
Let’s say that the inadvertent disclosure is so juicy that it is practically impossible to turn your eyes away from it. Blowing past the stop sign preceding the path to the point of no return will most certainly raise sanction concerns. There are avenues down this road that may allow you to, not only avoid sanctions, but also use the inadvertent disclosed document in your favor.
According to Rule 502(b) of the Federal Rules of Evidence, when made in a federal proceeding, the disclosure does not operate as a waiver in a federal or state proceeding if: the disclosure is inadvertent; the holder of the privilege or protection took reasonable steps to prevent disclosure; and the holder promptly took reasonable steps to rectify the error. While not dispositive, the following multifactor test is commonly used in determining whether an inadvertent disclosure is a waiver.
- the reasonableness of precautions taken,
- the time taken to rectify the error,
- the scope of discovery,
- the extent of disclosure, and
- the overriding issue of fairness.
Whether or not an inadvertent disclosure of privileged information constitutes a waiver varies amongst the courts. The majority of courts rule the inadvertent disclosure as a wavier if the disclosing party acted carelessly in disclosing the information and failed to request its return in a timely manner. Other courts rely on the theory that a disclosure must be intentional to be a waiver, while some courts hold that any inadvertent disclosure of privileged information constitutes a waiver without regard to the protections taken to avoid such a disclosure.
Sanctions for Violations
If an ethical violation occurs and a waiver does not apply, the penalties the court can impose on you and your client for improperly using inadvertently disclosed information can be devastating. Sanctions can be quite severe depending on the violation. Usual sanctions include disqualifying the lawyer that received the inadvertent disclosed document. A court can even go as far as disqualifying the lawyer’s entire law firm from any work in the matter.
Think twice before falling into the temptation of taking a “quick peek” at an inadvertent disclosure of privileged information. The ill-advised act could lead to a loss of billable hours, not only to you but to your entire law office. And as most associates know, the loss of money and clients are definitely not ways for attorneys to be successful in this often cut-throat career.