First, I'd like to welcome all my new subscribers! I'm so delighted to have you here!
I hope you all enjoy this issue of the Drescher ProParalegal Newsletter, offering practice tips and information of use and interest to my fellow paralegals, and legal professionals of all kinds. This issue features some tips on inadvertent disclosure of privileged documents, some blog posts I found interesting, and for Foodie Fun, Strawberry Season! Enjoy!
Inadvertent Disclosure - Just How Serious Is It?
Opposing counsel is accidentally copied on a confidential email to the client. (Darn that address auto-complete! NOTE: Turn. It. Off.)
Or privileged emails have accidentally been included in a document production.
These unhappy events are feared by us all, yet are becoming increasingly difficult to avoid in light of the exponential increase in email communications and vast volumes of ESI to be produced.
What happens in the event of an accidental disclosure of confidential documents? Has privilege been waived? Can opposing counsel use the confidential information?
There are two related but separate issues here.
First is the issue of a lawyer’s ethical duty (and her staff’s duty) upon receiving privileged information she’s pretty sure was disclosed by accident. Here a lawyer is faced with conflicting ethical duties: the duty to respect the attorney-client privilege vs. the duties to vigorously represent her client and to keep the client fully informed.
ABA Model Rule 4.4(b) and Comment  make clear that any lawyer receiving inadvertently disclosed confidential or privileged information has a duty to promptly notify the sender.
However as ABA Formal Opinion 05-437 makes clear, questions about whether the receiving lawyer has additional duties such as refraining from reading or using the material, or about whether the disclosure waives privilege, are matters of law to be decided by statutes or the courts.
Many states have reiterated in their own Ethics Opinions or laws that lawyers receiving inadvertently produced privileged information must notify the producing lawyer. However jurisdictions vary as to whether the receiving lawyer may ethically use the inadvertently disclosed information in his trial strategy, and whether he may reveal the disclosure to his client.
For example, in California not only does an inadvertent disclosure of privileged information not result in an immediate waiver of privilege (see Cal. Evid. Code §912), but case law places additional duties upon the recipient. If a lawyer receives materials that appear to be privileged, and also appear to have been disclosed inadvertently, not only does she have a duty to notify the disclosing party, but she also has a duty to “refrain from examining the materials any more than is essential to ascertain if the materials are privileged.” State Compensation Ins. Fund v. WPS, Inc., 70 Cal.App.4th 644, 656-7 (1999); see also Clark v. Superior Court, 196 Cal.App.4th 37 (2011).
Privilege Waiver. Federal law addresses the prospect of confidential information inadvertently disclosed. In a revision enacted in 2008 and intended to resolve disputes among the courts regarding waiver of privilege resulting from inadvertent disclosure, Fed. R. Evid. 502(b) clarifies the circumstances in which an inadvertent disclosure does or does not waive privilege.
The rule states that 1) when the disclosure was inadvertent, 2) the party claiming privilege took reasonable steps to prevent disclosure, and 3) the party claiming privilege took reasonable steps to correct the error after disclosure occurred, then privilege is not waived.
Further, F.R.C.P. 26(b)(5)(B) states that if privileged information is produced, the party claiming privilege may notify the recipients of the basis for the privilege claim, upon which the receiving party must promptly return, sequester or destroy the specified privileged information and any copies in its possession, and is not allowed to use of disclose the information until the claim is resolved.
In practice, this generally means as long as the producing party can show it didn’t intend to disclose the privileged information, notified the receiving parties of the error, and had taken steps, however unsuccessful, to guard against the disclosure, privilege won’t be waived and the receiving party won’t be able to make use of the privileged information in the lawsuit.
Of course, courts differ in their interpretation of what constitutes “reasonable steps” to prevent disclosure or to provide prompt notice. There have certainly been instances where a court ruled that privilege had been waived due to delay in notification of a disclosure, or due to inadequate privilege review.
What Should We Do?
Know your state’s ethical guidelines, and your state or federal jurisdiction’s statutes or case law on the subject.
Do everything in your power to assure privilege review procedures are in place and are as thorough as practicable. Make every effort to prevent any privileged documents from slipping out of the office.
The moment you learn privileged information may have been disclosed in any manner, inform your supervising attorney.
Most likely opposing counsel will need to be notified immediately. The speed with which this is done may impact whether privilege is waived.
Your attorney will want to try to negotiate the handling of the disclosure with opposing counsel.
What about you? Do you have your own inadvertent disclosure war stories? Email me your comments, and I’ll include them in a future issue!
Redaction Reader Comments. A reader emailed me to report she'd had a redaction project at work that very week. Her attorney was using a Sharpie. The reader kept telling her she could do the redactions electronically using PDF software, and the attorney kept saying that wasn't necessary -- even though 75% of the document was being redacted! The reader finally just left the room and returned shortly with a sample page that had been redacted electronically. The attorney relented.
For more insights on the advantages of digital redaction to share with your office, see the sidebar Resources!
Jurors and Social Media. For another look at the issue of Tweeting and Facebooking jurors, see The Daily Record column, Mass., Fla. courts chime in on jurors and social media by Nicole Black.
For California readers, an upcoming event!
CAPA 2012 Educational Conference - June 23, 2012, Hilton Sacramento. MCLE credits are available. Register soon! Last year the conference sold out!
Here are this issue's blog posts that I found useful, interesting or fun. I think you might enjoy them!
It is probable a true history of human events would show that a far larger proportion of our acts are the result of sudden impulses and accident, than of that reason of which we so much boast.
~ Preface to "The Pilot," James Fenimore Cooper (1789-1851)
I adore strawberries, and this makes June one of my favorite foodie seasons of the year.
Here are some fabulous strawberry recipes to try!
Do you think strawberries are for breakfast or dessert only? Think again!
I love fruit in salads, and here is a recipe for a wonderfully healthy Chicken and Strawberry Salad.
Or how about this Strawberry-Avocado Salsa? It's got sweetness from the strawberries, some heat from a seeded jalapeno, and avocado - what could be better?
Or how about this adult version (because of the wine) of a Chilled Strawberry Soup? This sounds heavenly, and I can't wait to try it.
Of course sometimes strawberries are for breakfast, er, dessert . . . Strawberries and Cream Biscuits!
Let the Strawberry Feast begin!
Got your own favorite strawberry recipes to share? Email me, and I'll include them in future issues!
Email me your comments - I would love to hear from you! Tell me what practice tips you'd like to see covered. Tell me your thoughts on any of the blogs or quote. Tell me what events you're attending, and I will include them in upcoming issues! You can reply to this email, or contact me any time at firstname.lastname@example.org.
All my best to you all, and have a fabulous upcoming weekend!
Drescher ProParalegal helps solo practitioners and law firms of all sizes with their short term legal staffing needs by providing flexible, affordable paralegal assistance, either on site or virtually.
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