‘Do They Know They Produced That?’ Legal, Ethical, and Practical Aspects of Inadvertent Disclosures
The Bencher | July/August 2023
By Shannon “A.J.” Singleton, Esquire, and Amelia Martin Adams, Esquire
Countless lawyers have inadvertently sent or received something that they know was not meant for the recipient. Sometimes the issue arises in a random email on which counsel was accidentally copied. Other times it takes the form of a document that should have been withheld as privileged, yet is a Bates-stamped part of the opposition’s production. These inadvertent disclosures create legal and ethical issues for both sender and recipient, who should be familiar with the governing rules and employ strategies for minimizing future risk.
The Legal Side of Inadvertent Disclosures
“The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”
Another well-recognized protection, the work-product doctrine, states “[a]t its core…shelters the mental processes of the attorney, providing a privileged area within which he [or she] can analyze and prepare [the] client’s case.” U.S. v. Nobles, 422 U.S. 225, 238 (1975). Recognizing the importance of these privileges, counsel guard against disclosing protected information. Despite best efforts, however, privileged documents may be inadvertently disclosed during discovery. When that occurs in a federal court proceeding, Federal Rule of Civil Procedure (FRCP) 26(b)(5)(B) guides the next steps, stating: “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.”
Fed. R. Civ. P. 26(b)(5)(B). FRCP 45(e)(2) contains similar language that applies when protected information is produced in response to a subpoena. Although FRCP 26 and 45 apply only in federal litigation, some states have adopted similar provisions. See, e.g., Vt. R. Civ. P. 26(b)(6), 45(d)(2); Mont. Code Ann. 25-20-26(b)(6)(B), 25-20-45(e)(2)(B).
When a party that inadvertently produced information in discovery claims that it is protected and the other party disagrees, FRCP 26(b)(5)(B) permits the court to determine whether that claim is correct. During that review, parties may ask the court to also determine whether the disclosure waived any applicable protection. Federal Rule of Evidence (“FRE”) 502 was enacted to “resolve…longstanding disputes…about the effect of certain disclosures of communications or information protected by the attorney-client privilege or as work product,” and it guides the court’s determination about waiver in federal and some state court proceedings. Fed. R. Evid. 502 (Committee Note 1).
“When made in a federal proceeding or to a federal office or agency, [a] disclosure does not operate as a [privilege] waiver in a federal or state proceeding if: (1) the disclosure was inadvertent; (2) the holder of the privilege took reasonable steps to prevent disclosure; and (3) the holder promptly took steps to rectify the error including (if applicable) following [FRCP] 26(b)(5)(B).” Fed. R. Evid. 502(b). “The party asserting the privilege, even if disclosure of the communication was inadvertent, bears the burden of establishing each of these three elements.” Ed. Assist. Found. v. U.S., 32 F.Supp.3d 35, 44 (D.D.C. 2014) (citation omitted).
In comparison, under FRE 502(c), disclosures made in state proceedings that are not covered by a state court order concerning waiver do not constitute waivers in federal proceedings if they would not be a waiver under the law of the state where they occurred or under FRE 502 if made in a federal proceeding.
While FRE 502 provides shields against privilege waivers through inadvertent disclosure, concerned litigants may create additional safeguards tailored to their specific cases through a “502(d) order.” FRE 502(d) permits a federal court to “order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court.” Fed. R. Evid. 502(d). If the court enters such an order, any covered disclosure is not a waiver in the case before that court or “in any other federal or state proceeding.”
Although litigants can also reach informal agreements regarding inadvertent disclosures, their agreements will only bind the parties thereto—not third parties—unless they are incorporated into a court order. Fed. R. Evid. 502(e). Like any other order, of course, the application and enforcement of a 502(d) order is subject to the court’s interpretation.
The Ethics Side of Inadvertent Disclosures
In addition to legal obligations, counsel have ethical duties as inadvertent senders and unintended recipients of protected information. Their precise duties depend on the ethics rules to which they are subject, and some states impose more specific responsibilities than others. Since 2002, the Model Rules of Professional Conduct of the American Bar Association (ABA) and those of states that follow those rules have imposed greater ethical obligations on inadvertent senders than unintended recipients. Other states impose greater obligations on the recipient, opting to follow the ABA’s pre-2002 rules.
The ABA’s focus on the sender originates in Rule 1.6(a), under which counsel have an ethical duty to maintain confidentiality of information relating to client representations, regardless of the source. Accompanying Rule 1.6(c) requires the inadvertent sender to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
In comparison, Rule 4.4(b) limits the unintended recipient’s ethical obligations solely to notifying the sender, stating: “A lawyer who receives a document or electronically stored information relating to [a client] representation…and knows or reasonably should know that the document or…information was inadvertently sent shall promptly notify the sender.” Rule 4.4(b) “does not require the receiving lawyer to either refrain from examining the materials or to abide by the [sending lawyer’s] instructions.” ABA Formal Op. 05-437, at 2 (Oct. 1, 2005). Indeed, “[w]hether the lawyer is required to take additional steps, such as returning the document,…is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document…has been waived.” Rule 4.4, cmt. 2. That is where FRCP 26 and 45 and FRE 502 come in.
Declining to follow the ABA’s revised Rule 4.4, a minority of states maintain the ABA’s previous stance on the unintended recipient’s ethical obligations and require receiving counsel not only to notify the sender but also to refrain from reading the material and abide by the sender’s instructions about the material’s treatment. For example, under New Jersey Rule of Professional Conduct 4.4(b), “[a] lawyer who receives a document or electronic information and has reasonable cause to believe that the document or information was inadvertently sent shall not read the document or information or, if he or she has begun to do so, shall stop reading it,” and “(1) promptly notify the sender (2) return the document to the sender and, if in electronic form, delete it and take reasonable measures to [ensure] that the information is inaccessible.” See also, e.g., Ky. SCR 3.130(4.4(b)) (similar language).
The Practical (and Professional) Side of Inadvertent Disclosures
While receiving counsel must first consider their legal and ethical obligations regarding unintended disclosures, they should also remember general tenets of professionalism. Only notifying an inadvertent sender, even when applicable ethical rules require nothing further, tests the adage of “what goes around, comes around.” Receiving counsel would be wise to remember that today’s unintended recipients could be tomorrow’s inadvertent senders. Illustrating that conundrum, when it suggested rejecting the ABA’s “notice-only” change to Rule 4.4(b), Kentucky’s Ethics 2000 Committee explained that it “elected the more stringent requirements [in the prior rule] of refraining from examining the substance of the document, notifying the sender, and abiding by instructions as to disposition…[b]ecause electronic communication is so prone to this kind of error, and…principles of fairness should govern attorney behavior in these circumstances which, in turn, will promote both just ends and civility in the means of achieving them.” KBA Ethics 2000 Committee Report, pp. 4–18 (Nov. 16, 2006).
Counsel who send emails and produce documents in discovery can do many things to avoid the legal, ethical, and professional dilemmas of unintended disclosures. Regarding emails, counsel should recognize the dangers inherent in an email program’s ability to send mail with only one click, “autofill” a recipient’s address, and “reply all” without verification of the intended recipients. To combat one-click concerns, counsel may prevent a draft email from being sent by waiting to type the recipient’s address in the “to” box until the message is in final form. They can also explore whether their email program offers a delayed-send feature, allowing the user a brief time to catch and edit an email in the outbox before it is sent.
The autofill concern may, of course, be addressed by triple-checking the address before hitting send, especially when an email contains sensitive information. And the reply-all risk can be lessened by using an email system’s pop-up prompt asking senders whether they really want to “reply all.” In the same vein, counsel should advise clients when not to reply all to an email chain and about the consequences of forwarding an otherwise privileged email communication to parties outside the privilege.
In the context of document production, counsel can take reasonable steps when reviewing and preparing documents to decrease the possibility of inadvertent disclosure. Those steps could include, for example, running the names and email addresses of the client’s attorneys (both in-house and outside counsel) through computerized production review software to determine the extent to which the production set is likely to include privileged communications before undertaking a visual review of each document.
Of course, accidents can still happen, and counsel must act promptly upon notification that they produced privileged documents. After addressing the disclosure at hand, counsel should determine how it happened and consider whether that same mistake could have caused other privileged documents to be produced. Simply by retracing their steps, counsel may find other documents that should not have been produced before opposing counsel discovers them.
Harmonizing the Sides of Inadvertent Disclosure
Technology changes daily and plays an ever-increasing role in the legal profession. Although the ability to share information instantaneously, without reams of paper, has improved the profession in many ways, the risk of inadvertent disclosure in fast-paced written communication is exponentially higher now than it was when hard copies and snail mail were the only options.
If an inadvertent disclosure crosses your desk, as sender or recipient, take a breath, consider the law and your ethical obligations, and begin damage control. Better yet, before that happens, develop a protocol that you can employ when a future inadvertent disclosure occurs to guide your response in the stress of the moment. Preparation cannot make the moment any less challenging, but it can lessen the negative impact of an honest mistake that could happen to any attorney.
Shannon “A.J.” Singleton, Esquire, is general counsel and a member of Stoll Keenon Ogden PLLC, in Lexington, Kentucky. He is a frequent speaker and author on such topics as conflicts of interest, the duty of confidentiality and the attorney-client privilege, risk management issues, and law firm departures. Amelia Martin Adams, Esquire, is a member of Stoll Keenon Ogden PLLC, in Lexington, Kentucky. She is a Barrister member of the Central Kentucky American Inn of Court and serves on the Editorial Board for The Bencher.