By William C. Saturley and Bernard D. Posner
The Daily Record Newswire
A long day.
One more e-mail and you can leave. This one goes to a client, discussing the opposing side’s most recent offer. Having concluded your assessment and strategy recommendations, you hit “send” and off it goes to the client.
Then your stomach flip-flops as you realize you actually forwarded the e-mail to opposing counsel, whose name starts with the same letter as your client. Your e-mail program “helpfully” auto-filled in your opponent’s e-mail address. What now can you do?
Prevention beats the cure.
The preferred course, obviously, is preventing such inadvertent disclosures from occurring in the first place. Training your assistants to understand the cases on which they work helps them to understand why some documents go to people and not to others. Avoiding the use of auto-fill on e-mail addresses is a risk management tool frequently employed at law firms.
Suggestions to cut down on disclosure errors are available from many sources, including your professional liability insurance broker. All these techniques may still fail you someday, however, and you will be forced to confront the consequences of your disclosure: Can your opponent use the information you inadvertently produced?
Different jurisdictions mean different views.
The majority of states take a forgiving approach to inadvertent disclosure. If reasonable, precautionary steps were taken to prevent such happenings, no waiver of the content is deemed to have occurred.
Some other jurisdictions are even more forgiving in their treatment: Because the inadvertent disclosure was, by its very nature, unintended, the waiver never occurs. Still other jurisdictions, however, find that a waiver occurs regardless of the holder’s intent or inadvertence.
Consider agreeing in advance to honor the privilege.
Both litigation and commercial matters involve more documents than ever before, many of which are digitally exchanged in large batches. The opportunity to inadvertently provide the other side with a privileged document is magnified.
When starting such an exchange, consider whether quality control requires more than one person involved in the privilege review. That may only mean a random but regular sampling of the production set. Again, your broker or insurer may have helpful risk management techniques.
Consider entering into a “clawback agreement” with opposing counsel. Clawbacks generally provide that inadvertent disclosure is not a waiver. While not a substitute for a well-designed review process, they can minimize the potential damage.
Ask for the return of inadvertently produced documents.
If, despite your reasonable precautions, you inadvertently disclose privileged material, immediately contact opposing counsel. Describe the materials in sufficient detail so that counsel can identify them without actually reading them. Ask counsel to refrain from reviewing the material further and to return it immediately. Follow up your oral request with a written one.
If opposing counsel questions whether the documents are actually privileged, he may hesitate to return the documents. Counsel may disagree that he is ethically bound to automatically return the documents; indeed, an argument exists that, with the documents in hand, his ethical duty to his client compels him to examine what he has. Counsel should, however, agree to stop reviewing the documents and forego using them until the issue has been cleared up between the two parties, by the court if necessary.
Remember in your discussions that the tables can be turned. Whatever obligations you urge on your adversary may someday apply to you. Consider what you would do if you unilaterally discover the other side has inadvertently produced privileged material and has yet to realize it. Would you notify them of that fact?
You bear the burden.
If opposing counsel refuses to return the materials, you bear the burden to prove to the court that the materials warrant protection and that you took reasonable precautions to prevent disclosure.
The court will consider: (1) the reasonableness of the precautions taken; (2) the amount of time it took the producing party to recognize its error; (3) the scope of the production; (4) the extent of the inadvertent disclosure; and (5) the overriding interest of fairness and justice.
You should also anticipate a debate over the scope of any waiver. Did the disclosure waive the privilege for the entire subject matter discussed in the documents, or just the documents themselves?
Finally, consider at what point you must inform the client of the disclosure, consistent with your obligation to keep him informed of the progress of your representation.
Risk management requires putting reasonably calculated procedures in place to prevent inadvertent disclosure. Adopting such procedures also gives you high ground from which to argue for their return.
William C. Saturley and Bernard D. Posner are members of the business litigation and professional liability practice groups at Nelson, Kinder, Mosseau & Saturley in Boston. Saturley can be contacted at wsaturley@nkms.com; Posner is at bposner@nkms.com.
