When can you keep what the other side is claiming to be “privileged” information?

So the Opposing Party Accidentally Sent You Private E-Mails Between the Client and Their Attorney? Your Next Move Can Make the Difference Between Being Able to Use the Information or Not

Arthur Lawrence’s attorneys must have thought that he had struck gold because among the 15,000 documents turned over as discovery from Dependable Medical Transportation Services, LLC, there were a number of e-mails between the Dependable Medical and their attorney. Lawrence immediately jumped at the opportunity to use these e-mails to his advantage. The e-mails were the Holy Grail, the promised land; they would surely bolster his case against the defendant and they might even give him the leverage to win a motion for partial summary judgment. Without a moment’s hesitation, Lawrence filed that motion for partial summary judgment; however, he was in for a rude awakening.

The surprising part of this story is the fact that Lawrence was represented by counsel. He had retained the Phillips Deyes Law Group to represent him in this matter. Therefore, the ignorance of the court rules when dealing with such a matter is inexcusable; these attorneys should have known that not following the proper procedure in such a matter would result in an impending detriment to their client.

When the defendant learned that the plaintiff had these e-mails in their possession they requested that they be returned in accordance with Arizona Rule of Professional Conduct 4.4 which provides that “[a] lawyer who receives a document and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender and preserve the status quo for a reasonable period of time in order to permit the sender to take protective measures.” Further the comment on this rule state,  [i]f a lawyer knows or reasonably should know that a document was sent inadvertently, then this Rule requires the lawyer to stop reading the document, to make no use of the document, and to promptly notify the sender in order to permit that person to take protective measures.”

Nevertheless, the plaintiff ignored this rule and the defendant’s requests, did not return the documents, and utilized the e-mails in their motion for partial summary judgment. This was a mistake, which would ultimately cost them any chance to use the e-mails at all. In their ruling denying the motion for partial summary judgment, the court referenced a rule that the plaintiff’s should have already known Rule 26(b)(5)(B).

The court stated, “The requirements in Rule 26(b)(5)(B) are straight forward. Once a party is notified that a claim of privilege is being made, the party must either return or destroy the document or the party may turn the document over to the court for determination of the claim.” Piasa Commercial Interiors, Inc. v. J.P. Murray Co., 2010 WL 1241563 *2 (S.D. Ill. Mar. 23, 2010). Therefore, since the plaintiffs had not followed the rule they not only lost their motion, but also lost any chance to argue tor their right to use the e-mails in any capacity.

A.S. Mitchell received his B.A. in Political Science from the University of Central Florida (2008). He will receive his J.D. from Seton Hall University School of Law in 2015.

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