Ethics and the inadvertent disclosure E Discovery inadvertent disclosure ofÂ
privileged information in discovery has become more common as we grow more voluminous document production due to increased use of electronic media. lawyers are increasingly being called upon – or, more appropriately be forced – to produce millions of documents that at some earlier point in time were disorganized, existed only in computer hard drives and / or backup tapes, or never before had been in a physical examination form. Lawyers not only have to deal with the volume, but also to judicial decisions that sometimes argue that an inadvertent production of privileged documents constitutes a waiver of the matter as a collection of the entire document. Consequently, there is tremendous pressure on the privilege holder to review all the data of privilege.
Under Rule 501 of the Federal Rules of Evidence, the question of whether a particular document is privileged or otherwise protected is usually a matter of state law. State courts and federal courts interpreting state law, generally have had three different approaches to determine whether there has been a waiver of attorney-client privilege when privileged documents are inadvertently produced. The first is a “strict liability” approach, so that any disclosure, no matter how caused, constitutes a waiver of attorney-client confidentiality. See In re Sealed Case, The second view emphasized that a customer intends to withdraw the attorney-client privilege rule. See Berg Elecs., Inc. v. National, Inc., This “no waiver” approach often leads to the conclusion that no inadvertent disclosure can result in the waiver and inadvertent disclosure is, by definition, unwanted. The third view is a “balancing test” which requires the court to make a case by case determination of whether the behavior is excusable. See FH Chase, Inc. v. Clark Gilford. When documents are inadvertently produced, the receiving lawyer may face an ethical quagmire. Currently, under federal law, there is no requirement that a lawyer who receives inadvertently produced documents to return the documents to the production and therefore not a waiver of the privilege. Neither the Federal Rules of Civil Procedure require the receiving lawyer to stop reading the documents once it is determined that the documents were potentially privileged. Similarly, federal law does not require a receiving lawyer to tell the holder of the privilege of inadvertent production of privileged documents. Although there is no duty to disclose imposed by law, the American Bar Association (ABA) requires such disclosure. ABA Formal Opinion  and Rule ABA Model “A lawyer who receives a document relating to the representation of clients of the lawyer knows or should know that the document was inadvertently sent shall promptly notify the sender.”) And while the ABA previously forbidden to counsel inadvertently review of privileged material, the ABA withdrew the opinion in favor of formal opinion 05-437, which is intentionally silent on the subject. ABA Formal Opinion 92-368. Therefore, it seems that the only obligation to remain a lawyer ABA Model Rule 4. 4 (b) is to notify opposing counsel of that produced by chance when the lawyer knows or should know that a document was sent inadvertently.
Under a proposed amendment to Rule 26 (b) (5) (B), which may become law later this year, a lawyer who receives inadvertently produced documents must “return, sequester or destroy” the documents once production reported by the attorney. Supreme Court Orders, 2006-15 (April 12, 2006). In addition, the proposed rule provides that the lawyer refrain from receiving the use or disclosure of the materials to third parties until the privilege claim is resolved. The rule operates as a temporary stay pending the court’s determination of waiver, and assuming that the holder of the privilege to know about the inadvertent production. Unlike the ABA Model Rule, proposed that Rule 26 (b) (5) (B) does not require a receiving lawyer to notify opposing counsel. In the past, courts these ethical issues raised seemed reluctant to transform the ethical obligation of ABA in the substantive legal duty. Aerojet General Corp. v. Transp. INDEM. Sec, no duty to inform opposing counsel inadvertently produced privileged document); In re United Mine Workers of America Employee Benefit Plan Litigation, conflict strict liability approach to ABA Formal Ethics Opinion, which has no previous weight), in Resolution Trust Corp. v. First Bank of America, (ABA opinion is not binding on the court, but could be mandatory for members of ABA). The ABA itself refers the matter to court. ABA Model Rule, Comment 2 (“if the lawyer has an obligation to take additional measures, such as returning the original document, is a question of law beyond the scope of this Regulation). Consequently, a lawyer who receives privileged documents through inadvertent production can not be subject to the law s the ABA ‘disclosure.
So what can lawyers protocol in place to create an enforceable right of disclosure? Parties should consider incorporating the obligations in ABA Rule (b) and Rule 92-368 of former ABA “stop reading” providing a “make moves of this” agreement. The proposed Federal Rules of Civil Procedure, Rules 16 (b) and 26 (f), encode the longstanding practice of stipulated “make moves” agreements that the parties can adopt as part of an order management cases. . Once the order is signed by the judge, a lawyer who has the obligation to notify opposing counsel when the receiving lawyer receives a document that the lawyer knows or reasonably should know was inadvertently sent. tight-lipped attorney could face sanctions from the court for violating ethical obligations to this end case management.
