by Robert S. Bernstein, Esq.
*This article previously appeared in the November/December 2012 issue of Commercial Law World, the official publication of the Commercial Law League of America.
Even the most proficient emailer has clicked “send” just as she realized that the email included an unintended recipient. Many of us have emailed without noticing that our email system picked up a wrong name and sent the email to a completely different person than intended. Some of us have also experienced the dread when realizing that we produced a privileged or confidential document in discovery (or the temporary elation when an opponent did!).
Surely these accidents should be avoided whenever possible. Taking extra time to review the addressees and content is a great idea. In the discovery context, as with making or accepting offers that could be enforceable contracts, we should guard against inadvertent disclosure of documents.
Under the Model Rules, the subject is begun to be addressed by Rule 4.4 (b):
“A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”
This Rule applies to lawyers and creates ethical duties and does not require voluntary return of the material. The Federal Rules of Civil Procedure go further. Under Rule 26(b)(5)(B), there are other duties on the recipient:
Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
On top of the Rule 26 protections, the Rule 4.4 requires a lawyer to notify the sender, even if the sender is not a lawyer.
Often the effect of disclosure, which a party most wants to avoid, is the waiver of attorney-client privilege. It is one thing to try to “unring the bell” and negate the effects of disclosing something that leads to the other party now knowing something they didn’t know before. It is quite another thing for the disclosure to waive the privilege.
When deciding whether an inadvertent disclosure amounts to waiver of the privilege, many Courts use a 5-part test, looking at:
(1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving the party of its errors. (See Fidelity and Deposit Co. of Maryland v. McCulloch 168 F.R.D. 516 E.D.Pa. 1996.)
The first Fidelity factor relates to the precautions taken. That reminds us to just take an extra few seconds to think about clicking send, even outside of formal discovery. The extra seconds can save dozens of hours of litigation, trying to climb out of the hole of inadvertent disclosure.