What approach should be applied in determining whether an inadvertent disclosure strips a privileged communication of its attorney-client protection?

Inadvertent Disclosures: Who Benefits?

Plaintiff Steve Pick filed suit against Defendant City of Remsen (and other defendants) alleging, among other claims, violations of constitutional rights pursuant to 42 U.S.C. § 1983. Pick served the city with a discovery request. The city then produced 440 pages of documents, including 183 pages of e-mails. Some pages contained more than one email. The defendant’s inadvertently disclosed an email that was originally sent to six privileged recipients. Within thirty-four minutes of discovering that the email had been inadvertently produced, defense counsel contacted the plaintiff’s counsel. Defense counsel explained that the email was mistakenly produced and was protected by attorney-client privilege. Defense counsel asked that the email be destroyed. The plaintiff’s counsel refused.

Defendants’ filed a motion request that the court order the email’s destruction as an inadvertently produced privileged document. Applying the middle-of-the-road approach, the Magistrate Judge held Defendants had not waived attorney-client privilege by the inadvertent disclosure, and ordered the email to be destroyed. Plaintiff appealed.

Plaintiff objected to the analysis of the Magistrate Judge conducted pursuant to the middle-of-the-road test. The District Court recognized that three approaches have been developed to analyze inadvertent disclosures of privileged information. Including the lenient approach, the strict approach, and the middle-of-the-road approach. Having already held that the middle-of-the-road approach applies in diversity cases, the court held that the middle-of-the-road approach also applies in federal question cases. Furthermore, the court applied a “clearly erroneous or contrary to law” standard of review

Pursuant to the middle-of-the-road approach, the court considers five factors in determining whether the inadvertent disclosure waived attorney-client privilege. The factors are as follows: 1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production; 2) the number of inadvertent disclosures; 3) the extent of the disclosures; 4) the promptness of measures taken to rectify the disclosure; and 5) whether the overriding interest of justice would be served by relieving the party of its error. Plaintiff objected to the Magistrate Judge’s analysis under the first, third, and fifth factors.

Plaintiff objected to the Magistrate Judge’s conclusion that defense counsel took reasonable precautions prevent disclosure, alleging that defense counsel’s failure to create a privilege log was unreasonable, the privileged email was not inconspicuously located among non-privileged emails, and defense counsel’s review process—being the sole reviewer—was unreasonable. The court held that defense counsel’s failure to prepare a privilege log was not unreasonable because defense counsel’s review of the responsive documents did not reveal any privileged information. Further, the court held that the Magistrate Judge correctly concluded the privileged email to be inconspicuously located among non-privileged documents. The privileged email was located on the same page as a non-privileged email. Moreover, the privileged email was located on two pages of the 183 pages of emails, and 440 total pages of documents, produced. Likewise, the court found defense’s counsel’s review process to be reasonable. It is reasonable for an attorney to review discovery responses without non-lawyer staff. Thus, the court upheld the Magistrate Judge’s determination that first factor weighed in favor of maintaining the email’s privileged status.

Although the Magistrate Judge found the third factor to weigh in favor of waiver of the attorney-client privilege, Plaintiff objected to the factual finding that the privileged email was disclosed to not others. The plaintiff alleged that the privileged email was disclosed to its six recipients, thereby increasing the extent of the inadvertent disclosure. However, the court noted that the plaintiff ignored the Magistrate Judge’s conclusion that the six recipients were privileged recipients. Thus, the Magistrate Judge’s factual determination as to the extent of the disclosure was not clearly erroneous.

Finally, the plaintiff objected to the Magistrate Judge’s conclusion that the plaintiff would not suffer unfair prejudice by maintaining the email’s privilege protection. The court upheld that Magistrate Judge’s finding that the plaintiff had other evidence he intended to rely on by virtue of the fact that the plaintiff progressed with action for over nine months with out the benefit of the privileged email. The court also upheld the Magistrate Judge’s conclusion that the plaintiff could not reasonably rely on the privileged email to support his case because any attorney reviewing a document production with a large number of non-privileged documents would realize that the disclosure was inadvertent. Further, the court quoted the Magistrate Judge’s holding that “‘absent the mistaken disclosure, Pick and his attorneys would not know and would not have the right to know, the contents of the [email].’” Therefore, “the interest of justice would be harmed hereby permitting Pick to use the email at trial.”

There is no real harm in zealously representing your client’s interest after inadvertently receiving privileged information. Plaintiff’s attorney correctly chose to find a way to strip the email of its privilege protection in order to use the email to support the plaintiff’s case. However, attorneys should recognize an argument in favor of waiver of attorney-client privilege may be futile in instances similar to the facts above.      

Aaron Cohen, a Seton Hall University School of Law student (Class of 2015), focused his studies in the area of family law. He participated in the Seton Hall Center for Social Justice’s Family Law Clinic. After graduation, he will clerk for a judge in the Superior Court of New Jersey, Family Division. Prior to law school, he was a 2011 cum laude graduate of The George Washington University Columbian College of Arts and Sciences, where he earned a B.A. in psychology.

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